1

Sexual Sexual Orientation in EU Orientation in EU

LawLawHelena Pereira de MeloHelena Pereira de MeloHelena.melo@fd.unl.pt

November 2013November 2013

2

Oscar Wilde (1854 -Oscar Wilde (1854 -1900)1900)

3

Lord Alfred Douglas Lord Alfred Douglas (1893)(1893)

4

The Crown vs. Wilde The Crown vs. Wilde (1895)(1895)

arrested for "gross indecency" arrested for "gross indecency" under the Criminal Law under the Criminal Law Amendment Act 1885 - Amendment Act 1885 - An Act to An Act to make further provision for the make further provision for the Protection of Women and Girls, the Protection of Women and Girls, the suppression of brothels, and other suppression of brothels, and other purposespurposes

convicted of gross indecency and convicted of gross indecency and sentenced to 2 years' hard labour sentenced to 2 years' hard labour

5

““’’ThThe love that dare not speak its e love that dare not speak its name’ in this century is such a great name’ in this century is such a great affection of an elder for a younger affection of an elder for a younger man as there was between David and man as there was between David and Jonathan, such as Plato made the Jonathan, such as Plato made the very basis of his philosophy, and such very basis of his philosophy, and such as you find in the sonnets of as you find in the sonnets of Michelangelo and Shakespeare. It is Michelangelo and Shakespeare. It is that deep spiritual affection that is that deep spiritual affection that is as pure as it is perfect. It is as pure as it is perfect. It is beautiful, it is fine, it is the noblest beautiful, it is fine, it is the noblest form of affection. There is nothing form of affection. There is nothing unnatural about it. That it should be unnatural about it. That it should be so, the world does not understand. so, the world does not understand. The world mocks at it, and The world mocks at it, and sometimes puts one in the pillory for sometimes puts one in the pillory for it”.it”.

6

7

The Ballad of Reading Gaol The Ballad of Reading Gaol ((1989) 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.

8

Alexandrina Vitoria (1819 – Alexandrina Vitoria (1819 – 1901)1901)

9

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

10

Lady Gough's Book of Etiquette (1863)Lady Gough's Book of Etiquette (1863)

one should not place books by male and one should not place books by male and female authors side by side, but rather on female authors side by side, but rather on segregated bookshelvessegregated bookshelves

The only time books of male/female The only time books of male/female opposition should touch is when the authors opposition should touch is when the authors had been known to be marriedhad been known to be married

The word "cock" is removed from the English The word "cock" is removed from the English language - "Cockroaches" become "roaches". language - "Cockroaches" become "roaches". And male chickens... yes, those big, delicious And male chickens... yes, those big, delicious cocks; become big, delicious GENTLEMEN cocks; become big, delicious GENTLEMEN BIRDSBIRDS!!

11

A gentleman birdA gentleman bird

12

Sexual orientation:Sexual orientation:

1.1. HeterosexualHeterosexual – “opposite” – “opposite” sexsex

2.2. Homosexual Homosexual – same sex– same sex

3.3. BisexualBisexual – both sexes– both sexes

4.4. Gender-transgressing Gender-transgressing identityidentity or expressions or expressions

13

Anne Fausto-SterlingAnne Fausto-Sterling

The Five Sexes: Why Male The Five Sexes: Why Male and Female Are Not and Female Are Not

EnoughEnough

14

Sexing the body:Sexing the body:

a)a) MaleMale

b)b) FemaleFemale

c)c) Intersexed - hermaphroditesIntersexed - hermaphrodites

d)d) Gender reassignment – Gender reassignment – transsexuals – the third sex?transsexuals – the third sex?

15

Feb., 3, 2010Feb., 3, 2010

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

16

Sexual orientation - lawSexual orientation - law::

BulgariaBulgaria – “ – “heterosexual, heterosexual, homosexual or bisexual orientationhomosexual or bisexual orientation””

BritainBritain – “– “a sexual orientation a sexual orientation towards: (a) persons of the same sex, towards: (a) persons of the same sex, (b) persons of the opposite sex, or (c) (b) persons of the opposite sex, or (c) persons of the same sex and of the persons of the same sex and of the opposite sexopposite sex””

GermanyGermany – “– “sexual identitysexual identity””

17

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

Jonathan BennettJonathan Bennett

18

Homosexuality - Homosexuality - characteristic:characteristic:

InvisibleInvisible Not chosen (?)Not chosen (?) Genetically determined (?)Genetically determined (?) Leads to negative Leads to negative

discrimination in Europe.discrimination in Europe.

19

Physical manifestation of a gay Physical manifestation of a gay genegene

““Did you know that gay Did you know that gay men's hair is more likely men's hair is more likely to grow in a to grow in a counterclockwise pattern counterclockwise pattern while straight men grow while straight men grow clockwise? Or that a gay clockwise? Or that a gay man's index finger is man's index finger is likely to be longer than likely to be longer than his ring finger - his ring finger - something rarely found something rarely found on straight men?”on straight men?”

New York Magazine, 2008New York Magazine, 2008

20

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

21

Medieval ages:Medieval ages:

22

Legal history of Legal history of homosexualityhomosexuality - 2 rules: - 2 rules:

1.1. Criminal ruleCriminal rule – sexual – sexual activity is between man and activity is between man and womanwoman

2.2. Marriage ruleMarriage rule – for legal – for legal marriage you need to be of marriage you need to be of opposite sexesopposite sexes

23

XIX - XX Century -XIX - XX Century -

Decriminalization (Napoleonic Penal Decriminalization (Napoleonic Penal Code – 1810)Code – 1810)

Recognition of homosexual identity Recognition of homosexual identity and sub-culturesand sub-cultures

Recognition of same-sex unions as Recognition of same-sex unions as marriagesmarriages

Human rights issue - Anti-Human rights issue - Anti-homosexual discriminationhomosexual discrimination

24

Anti-homosexual Anti-homosexual discriminationdiscrimination

Opening marriage to same-sex Opening marriage to same-sex couplescouples

The right of homosexuals not to The right of homosexuals not to be treated differently because of be treated differently because of their sexual orientation – their sexual orientation – no no one shall be disadvantaged one shall be disadvantaged by law because of the gender by law because of the gender of the person she / he lovesof the person she / he loves..

25

26

27

28

Principle of non-Principle of non-discrimination:discrimination:

Treaty of Lisbon – 2007Treaty of Lisbon – 2007 Charter of Fundamental Rights of the EU -Charter of Fundamental Rights of the EU -

20002000 Council Directive 2000/43/EC of 29 June Council Directive 2000/43/EC of 29 June

implementing the principle of equal treatment implementing the principle of equal treatment between persons irrespective of racial or between persons irrespective of racial or ethnic originethnic origin

Council Directive 2000/78/EC of 27 November Council Directive 2000/78/EC of 27 November establishing a general framework for equal establishing a general framework for equal treatment in employment and occupationtreatment in employment and occupation

29

Treaty of Lisbon:Treaty of Lisbon:

““The Union is founded on the values of The Union is founded on the values of respect for human dignityrespect for human dignity, freedom, , freedom, democracy, democracy, equality, the rule of law and equality, the rule of law and respect for human rights, including the respect for human rights, including the rights of persons belonging to rights of persons belonging to minoritiesminorities. These values are common to . These values are common to the Member States the Member States in a society in which in a society in which pluralism, non-discrimination, pluralism, non-discrimination, tolerance, justice, solidaritytolerance, justice, solidarity and equality and equality between women and men between women and men prevailprevail.” (article .” (article 1 a))1 a))

30

““The Union shall combat social exclusion and The Union shall combat social exclusion and discrimination, and shall promote social justice discrimination, and shall promote social justice and protectionand protection (…)(…)” (article 2)” (article 2)

““The Union recognizes the rights, freedoms and The Union recognizes the rights, freedoms and principles set out in the CFREU, which shall have principles set out in the CFREU, which shall have the same legal value as the Treatiesthe same legal value as the Treaties.” (article 6).” (article 6)

““Fundamental rights, as guaranteed by the ECHR Fundamental rights, as guaranteed by the ECHR and as they result from the constitutional and as they result from the constitutional traditions common to the Member States, shall traditions common to the Member States, shall constitute general principles of the Union's lawconstitute general principles of the Union's law.” .” (article 6)(article 6)

31

Article 5 b)Article 5 b)

““In defining and implementing In defining and implementing its policies and activities, the its policies and activities, the Union shall aim to combat Union shall aim to combat discrimination based ondiscrimination based on sex, sex, racial or ethnic origin, religion racial or ethnic origin, religion or belief, disability, age or or belief, disability, age or sexual orientationsexual orientation.”.”

32

CFREU:CFREU:

““Everyone is equal before the lawEveryone is equal before the law” (article ” (article 20)20)

““Any discrimination based onAny discrimination based on any ground any ground such as sex, race, colour, ethnic or social such as sex, race, colour, ethnic or social origin, genetic features, language, religion or origin, genetic features, language, religion or belief, political or any other opinion, belief, political or any other opinion, membership of a national minority, property, membership of a national minority, property, birth, disability, age or birth, disability, age or sexual orientationsexual orientation shall be prohibitedshall be prohibited.” (article 21).” (article 21)

33

The Directives:The Directives:

The The Racial Employment Racial Employment DirectiveDirective and the and the Employment Employment Equality DirectiveEquality Directive

Require the Member States to Require the Member States to prohibit discrimination on the prohibit discrimination on the grounds of sexual orientationgrounds of sexual orientation

34

Material scope:Material scope:

Employment DirectiveEmployment Directive – – employment;employment;

Racial directiveRacial directive – employment, – employment, education, housing; requires education, housing; requires the Member States to the Member States to establish a body for the establish a body for the promotion of equal treatment.promotion of equal treatment.

35

Both apply to:Both apply to:

a)a) Conditions of access to Conditions of access to employment, self-employment or employment, self-employment or an occupation;an occupation;

b)b) Vocational training and guidance;Vocational training and guidance;c)c) Employment and working Employment and working

conditions;conditions;d)d) Membership in workers, Membership in workers,

employers and professional employers and professional organizationsorganizations

36

The Racial Directive applies The Racial Directive applies also to:also to:

a)a) Social protection, including Social protection, including social security and healthcare;social security and healthcare;

b)b) Social advantages;Social advantages;

c)c) Education;Education;

d)d) Access to good and services Access to good and services available to the public, available to the public, including housingincluding housing

37

Exceptions:Exceptions:

Religious beliefsReligious beliefs – can an – can an employer be hostile to employer be hostile to homosexuality because of them?homosexuality because of them?

Work-related benefits of married Work-related benefits of married peoplepeople - e.g. a pension - e.g. a pension entitlement for a surviving entitlement for a surviving spousespouse

38

Marriage of 2 homosexual Marriage of 2 homosexual priestspriests

39

Article 4(2) of the Article 4(2) of the Employment Directive:Employment Directive:

Member States can maintain laws Member States can maintain laws which allow churches to treat which allow churches to treat persons differently on the basis of persons differently on the basis of their religiontheir religion

It does not constitute discrimination It does not constitute discrimination when the person’s religion when the person’s religion constitutes a genuine, legitimate constitutes a genuine, legitimate and justified occupational and justified occupational requirementrequirement

40

Forms of prohibited Forms of prohibited discrimination:discrimination:

1.1. DirectDirect

2.2. IndirectIndirect

3.3. HarassmentHarassment

4.4. Instructions to discriminateInstructions to discriminate

41

1. 1. Direct Direct discrimination:discrimination:““one person is treated less one person is treated less favourably than another favourably than another is, has been or would be is, has been or would be

in a comparable situation, in a comparable situation, on the ground of sexual on the ground of sexual

orientationorientation””

42

43

Principle:Principle:

Direct discrimination cannot Direct discrimination cannot be justifiedbe justified

Exceptions – e.g. genuine Exceptions – e.g. genuine occupational requirements or occupational requirements or employers with a religious employers with a religious ethosethos

44

Being gay isn’t enough to get Being gay isn’t enough to get kicked outkicked out

45

Major Margaret WittMajor Margaret Witt In 2006, Witt was told she would be honorably In 2006, Witt was told she would be honorably

discharged for participating in homosexual discharged for participating in homosexual activity. Having joined the USA Air Force as a activity. Having joined the USA Air Force as a 2nd lieutenant in 1987, she was within a year 2nd lieutenant in 1987, she was within a year of retirement and posed for promotion to of retirement and posed for promotion to lieutenant colonel. lieutenant colonel.

““Wounded people never asked me about my Wounded people never asked me about my sexual orientation. They were just glad to see sexual orientation. They were just glad to see me thereme there.”.”

(Air Force Times, 2008(Air Force Times, 2008))

46

Art. 3 (4) of the Art. 3 (4) of the Employment Employment

DirectiveDirective““Member States may provide Member States may provide that this Directive, in so far that this Directive, in so far as it relates to discrimination as it relates to discrimination on the grounds of on the grounds of disability and agedisability and age, shall not , shall not apply to the armed forcesapply to the armed forces””

47

2. 2. Indirect Indirect discriminationdiscrimination

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

48

Survival pension: only for Survival pension: only for widowswidows

49

3. 3. HarassmentHarassment

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

50

51

4. 4. Instruction to Instruction to discriminatediscriminate

““an instruction to an instruction to discrimination against discrimination against persons on grounds of persons on grounds of sexual orientation shall be sexual orientation shall be deemed as discriminationdeemed as discrimination””

52

Positive action:Positive action:

““With a view to ensuring full With a view to ensuring full equality in practice, the principle equality in practice, the principle of equal treatment of equal treatment shall not shall not preventprevent any Member State from any Member State from maintaining or adopting specific maintaining or adopting specific measures to prevent or measures to prevent or compensate for disadvantages compensate for disadvantages linked to sexual orientationlinked to sexual orientation” ”

53

Join the armyJoin the army

54

Personal scope:Personal scope:

The Directives are The Directives are applicable to all persons, applicable to all persons, not considering not considering nationality, citizenship or nationality, citizenship or residence status;residence status;

Natural and legal personsNatural and legal persons. .

55

Law firm:Law firm:

56

I have been I have been discrimintated!discrimintated!

57

To whom complain?To whom complain?

Judicial proceedings (civil, Judicial proceedings (civil, criminal, labour, criminal, labour, administrative…)administrative…)

Mediation or conciliation Mediation or conciliation proceedingsproceedings

OmbudsmenOmbudsmen Labour and education inspectorsLabour and education inspectors

58

Burden of proofBurden of proof

Shifts to the respondent who has to Shifts to the respondent who has to prove that there was no breach of prove that there was no breach of the principle of equal treatment;the principle of equal treatment;

The person who considers to have The person who considers to have been discriminated only establishes been discriminated only establishes before the court, facts from which it before the court, facts from which it may be presumed that there has may be presumed that there has been discriminationbeen discrimination

59

60

Associations to victimsAssociations to victims

Which have a legitimate Which have a legitimate interest in ensuring that the interest in ensuring that the provisions of these Directives provisions of these Directives are complied withare complied with

May engage on behalf or in May engage on behalf or in support of the complainant, support of the complainant, in any procedurein any procedure

61

VictimizationVictimization

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

62

Low volume of case law Low volume of case law discrimination:discrimination:

a)a) Difficulties in term of proofDifficulties in term of proof

b)b) Complexity of discrimination lawComplexity of discrimination law

c)c) Insufficient financial meansInsufficient financial means

d)d) Short term limits for bringing a Short term limits for bringing a case after the employment case after the employment relationship has endedrelationship has ended

e)e) The impression that success is The impression that success is improvableimprovable

63