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Sexual Orientation in EU Law. Helena Pereira de Melo November 2013. Oscar Wilde (1854 -1900). Lord Alfred Douglas (1893). The Crown vs. Wilde (1895).

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sexual orientation in eu law

Sexual Orientation in EU Law

Helena Pereira de Melo

November 2013

the crown vs wilde 1895
The Crown vs. Wilde (1895)
  • 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
  • convicted of gross indecency and sentenced to 2 years' hard labour

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

the ballad of reading gaol 1989
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.

female homosexuality does not exist

“Female homosexuality does not exist"

“ladies would never engage in such despicable acts…”

lady gough s book of etiquette 1863
Lady Gough's Book of Etiquette (1863)
  • 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!
sexual orientation
Sexual orientation:
  • Heterosexual – “opposite” sex
  • Homosexual – same sex
  • Bisexual– both sexes
  • Gender-transgressing identity or expressions
sexing the body
Sexing the body:
  • Male
  • Female
  • Intersexed - hermaphrodites
  • Gender reassignment – transsexuals – the third sex?
feb 3 2010
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."

sexual orientation law
Sexual orientation - law:
  • Bulgaria – “heterosexual, homosexual or bisexual orientation”
  • 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”
  • Germany– “sexual identity”
homosexuality characteristic
Homosexuality - characteristic:
  • Invisible
  • Not chosen (?)
  • Genetically determined (?)
  • Leads to negative discrimination in Europe.
physical manifestation of a gay gene
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

legal history of homosexuality 2 rules
Legal history of homosexuality - 2 rules:
  • Criminal rule – sexual activity is between man and woman
  • Marriage rule – for legal marriage you need to be of opposite sexes
xix xx century
XIX - XX Century -
  • Decriminalization (Napoleonic Penal Code – 1810)
  • Recognition of homosexual identity and sub-cultures
  • Recognition of same-sex unions as marriages
  • Human rights issue - Anti-homosexual discrimination
anti homosexual discrimination
Anti-homosexual discrimination
  • Opening marriage to same-sex couples
  • 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.
principle of non discrimination
Principle of non-discrimination:
  • 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
treaty of lisbon
Treaty of Lisbon:

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

“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)
article 5 b
Article 5 b)

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

  • “Everyone is equal before the law” (article 20)
  • “Any discrimination based on any ground such as sex, 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)
the directives
The Directives:
  • The Racial Employment Directive and the Employment Equality Directive
  • Require the Member States to prohibit discrimination on the grounds of sexual orientation
material scope
Material scope:
  • Employment Directive – employment;
  • Racial directive – employment, education, housing; requires the Member States to establish a body for the promotion of equal treatment.
both apply to
Both apply to:
  • Conditions of access to employment, self-employment or an occupation;
  • Vocational training and guidance;
  • Employment and working conditions;
  • Membership in workers, employers and professional organizations
the racial directive applies also to
The Racial Directive applies also to:
  • Social protection, including social security and healthcare;
  • Social advantages;
  • Education;
  • Access to good and services available to the public, including housing
  • Religious beliefs – can an employer be hostile to homosexuality because of them?
  • Work-related benefits of married people - e.g. a pension entitlement for a surviving spouse
article 4 2 of the employment directive
Article 4(2) of the Employment Directive:
  • Member States can maintain laws which allow churches to treat persons differently on the basis of their religion
  • It does not constitute discrimination when the person’s religion constitutes a genuine, legitimate and justified occupational requirement
forms of prohibited discrimination
Forms of prohibited discrimination:
  • Direct
  • Indirect
  • Harassment
  • Instructions to discriminate
1 direct discrimination

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”

  • Direct discrimination cannot be justified
  • Exceptions – e.g. genuine occupational requirements or employers with a religious ethos
major margaret witt
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 2nd 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)

art 3 4 of the employment directive

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 of disability and age, shall not apply to the armed forces”

2 indirect discrimination
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”

3 harassment
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”

4 instruction to discriminate
4. Instruction to discriminate

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

positive action

Positive action:

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

personal scope
Personal scope:
  • The Directives are applicable to all persons, not considering nationality, citizenship or residence status;
  • Natural and legal persons.
to whom complain
To whom complain?
  • Judicial proceedings (civil, criminal, labour, administrative…)
  • Mediation or conciliation proceedings
  • Ombudsmen
  • Labour and education inspectors
burden of proof
Burden of proof
  • Shifts to the respondent who has to prove that there was no breach of the principle of equal treatment;
  • 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
associations to victims
Associations to victims
  • Which have a legitimate interest in ensuring that the provisions of these Directives are complied with
  • May engage on behalf or in support of the complainant, in any procedure


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

low volume of case law discrimination
Low volume of case law discrimination:
  • 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