WINDS OF DISCRIMINATION IN WARSAW AND IN BUDAPEST
Recently, the conservative governments of Poland and Hungary have adopted both national and local laws restricting fundamental human rights, such as gender equality and non-discrimination based on sexual orientation. Such measures have been justified in the name of the protection and the preservation of the traditional heterosexual family and its core values, thus raising the concerns of the international community.
In 2020, for example, Warsaw passed an anti-LGBT bill. In the fierce protests that followed, the illegitimate arrest of a transgender activist calling for equality and dignity for all citizens was reported by the media. While of course the LGBTIQ community still faces threats all over the European Union (EU), in Poland, unfortunately, various and progressive forms of discrimination against gay people have been registered for at least two years now, and have escalated to the point that a massive exodus of gay people fleeing violence is now taking place, according to The New York Times.
What is more, recent research suggests that, far from declining, this wave of intolerance and violence has been steadily rising since the beginning of the pandemic. The argument behind such measures is that the LGBT (or LGBTIQ, when also including intersexual and queer people) movement is considered a disruptive foreign ideology that is susceptible to undermining the principles the traditional Polish family is founded upon.
As an attempt to halt this alarming trend, the EU even stopped financing an inclusion project in several Polish cities following their adoption of an “LGBT-free zone,” strongly condemning these measures, but to no avail. Consequently, global diplomacy stepped in and urgently called for the end of any form of discrimination through an open letter signed by the representatives of dozens of countries. However a new Polish law was then announced that will ban homosexual people from adopting children, even as single parents. The Deputy Justice Minister reportedly said that such a measure is necessary to protect children and ensure their wellbeing – thus alarmingly identifying gay people as dangerous individuals and inadequate parents, and ultimately inadequate citizens.
The same anti-LGBT trend can be seen in Hungary. Discriminatory measures include, for example, the ban of adoption for same-sex couples, the restrictions on gender changes in official documents such as birth certificates, and the severe reaction to a Hungarian novelist re-telling traditional tales in a more inclusive and diversity-sensible language. These episodes clearly speak to an ongoing hostile climate in Hungary with respect to the LGBT community’s rights, despite the urging of both Strasburg and Luxembourg. The Council of Europe in the 2015 OM v. Hungary case had already sanctioned Budapest for the illegitimate and arbitrary detention of a refugee fleeing his home country because of his sexual orientation, whereas the Court of Justice of the EU ruled on a similar case where Budapest imprisoned a homosexual refugee and even forced him to undertake “psychological tests” to ascertain his sexual orientation. The latter case is especially relevant because the Luxembourg Court made it clear for all EU member states that such practices are strictly forbidden in the Union - being a clear violation, among others, of the right to privacy and the right to self-determination.
What is even more concerning is that if these repressive waves are not dealt with in a timely manner, it leaves open the risk of emulation by conservative trends in other countries. Such has been the concern, for instance, for Romania, where a (failed) constitutional amendment tried to outlaw homosexual families, and for Italy, where parliamentary sessions on a bill for an anti-homophobia law have been unduly postponed for months now. A situation the EU is not likely to accept.
LGBTQI+ RIGHTS ARE HUMAN RIGHTS
The EU, indeed, is founded upon a set of values laid out in Article 2 TEU including, but not limited to, democracy, rule of law, and human dignity. Such principles are a projection of the role the EU aims to achieve on an international scale and stand as a set of minimum standards a country needs to have to become a member state.
As the European Parliament has clearly stated, in fact, “the backlash against LGBTIQ people is often coupled with a broader deterioration in the situation of democracy, the rule of law and fundamental rights” (2021/2557 Resolution, Letter L) and thus needs to be treated very seriously.
The question remains, however, of the state of the EU’s law concerning LGBTIQ rights.
In this regard, the treaties do not make explicit reference to the rights of the LGBTIQ community as an autonomous set of principles under EU law. It should be noted, however, that there is an ever-growing consensus that these rights can no longer be considered relevant to a minority only, because they are a vital part of the hard bundle of human rights. Non-discriminatory practices against the LGBTQ community, in other words, are part of the core values of contemporary democracies.
Further to this, LGBTIQ rights are now considered international human rights. From an international legal perspective, it ought to be considered that while these rights are not specifically mentioned in the first UN-sanctioned international treaties, human rights nevertheless have a universal dimension and are meant to evolve as societies change. The ever-changing social and moral context is the reason why international human rights treaties tend to be worded in a way so that their provisions can encompass a wide variety of positions, avoiding the risk that an international treaty may become too obsolete too soon.
With these considerations in mind, human rights in a contemporary context should be interpreted so as to naturally comprehend gender identity and sexual orientation. Such an interpretation is a milestone, because it enables the international community to make states liable for their misconduct, and was affirmed over a decade ago by the United Nations. The imperatives of non-discrimination and intolerance to any form of violence against the LGBTIQ community have also been universally acknowledged thanks to the combined efforts of the case law resulting from both the European Court of Human Rights and the Court of Justice of the EU.
BRUSSELS’ MOVE: FROM ARTICLE 7 TO THE 2021/2557 RESOLUTION
As a reaction to the discriminations in Poland and in Hungary, the EU first tried to trigger Article 7 TEU proceedings. These measures represent a remarkable prevention tool to tackle any potential or ongoing breach of the law of the EU. Pursuant to the initiative of the European Parliament, the Commission or by one third of the member states, the Council may intervene if there is more than a reasonable doubt that a “clear risk of a serious breach by a member state of the values referred to in Article 2” TEU are taking place. Thanks to this provision, a member state allegedly guilty of undermining some of the Union’s core values, such as democracy, equality, the rule of law, and respect for human rights (Article 2 TEU), will be put under observation. If the breach is ascertained and continues, the Council may suspend certain rights deriving from the application of the treaties.
Following this procedure, last September the European Parliament adopted a proposal for a Council Resolution on the determination of a clear risk of a serious breach by the Republic of Poland of the principle or rule of law, having previously expressed deep concern about the ongoing situation in both Poland and Hungary.
Given that these targeted measures have largely remained ineffective, Brussels decided to take a more decisive stance on LGBTIQ rights. On 11 March, 2021, the European Parliament adopted a Declaration of the European Union as an LGBTIQ Freedom Zone with 492 votes in favour, 141 opposing votes, and 46 abstained, following a joint declaration on everyone’s right to be themselves adopted last December by the European Commission along with the European Parliament, the Council, the European Economic and Social Committee, and the Committee of Regions. Moreover, stating that “our social, political and economic strength comes from our unity in diversity,” last November the European Commission adopted an ambitious pluriannual strategic programme with initiatives meant to enhance equality and fair treatment for members of the LGBTIQ community.
Resolution 2021/2557 clearly states that LGBTIQ rights “are human rights” (Letter A) and that “the right to equal treatment and non-discrimination is a fundamental right enshrined in the EU treaties and in the Nice Charter and should be fully respected” (Letter B). What is more, all member states still have assumed “obligations and duties under international law and the EU treaties to respect, guarantee, protect and fulfil fundamental rights,” that concur with those enshrined at a regional level. The European Parliament takes an extraordinarily strong position by stating that “combating inequality in the EU is a shared responsibility, requiring joint efforts and action at every level of government.”
THE WAY FORWARD
While the strength of the European Parliament’s resolution is limited, because it doesn’t lay out legally binding measures for member states to comply with and that can be sanctioned for non-compliance, this important document does indeed still have its merits. Firstly, it formally states that LGBTIQ rights are human rights – a long needed stance in international law. Secondly, it helps determine some minimum standards of protection for LGBTIQ communities which all states should abide by. While the road ahead remains long and difficult, and full equality might sadly take a long time to achieve, this remains a tangible sign of better days ahead.
Irene Malusà is an Italian lawyer with a Master’s Degree in Italian Law and a Bachelor’s Degree in French Law, as well as a Post-Graduate Diploma in Diplomatic Studies. She is deeply passionate about International Law, Climate Change and Human Rights. She has served as a volunteer for Amnesty International and for independent NGOs providing first legal assistance to migrants and other fragile categories. In her free time, she loves reading, classical and jazz music and photography.