Same-Sex Marriage: The EU is Lagging Behind

Alina Tryfonidou, Associate Professor in EU Law, School of Law, University of Reading

Last Friday, in its much-awaited ruling in Obergefell v. Hodges, the US Supreme Court held that same-sex couples derive from the US Constitution the fundamental right to marry and, for this reason, invalidated State laws which impose a ban on such marriages. The Supreme Court, also, held that marriages lawfully performed in one US State must be fully recognised in all other US States. This is, without a doubt, an historical ruling of immense symbolic and practical importance, since it means that allLGB US citizens are now able to marry a same-sex partner, and to be recognised, together with the latter, as a married couple everywhere in the US.

Given that the first country in the world that opened registered partnerships to same-sex couples was Denmark, in 1989, and that the first country that opened marriage to same-sex couples was the Netherlands, in 2001, one would have expected the EU to be a pioneer in matters regarding the legal recognition of same-sex relationships. Nonetheless, the EU’s stance on these matters and on the protection of the rights of same-sex couples remains disappointingly aloof.

This piece will focus on same-sex marriage and shall seek to examine the EU’s position towards a) same-sex marriage in situations confined within a single Member State; and b) the cross-border legal recognition of same-sex marriages (i.e. when EU citizens who are married to a person of the same sex move to another Member State).

Can the EU Require Member States to Open Marriage to Same-Sex Couples?

The answer is simple and it is ‘no’, at least as things stand at the moment. In its judgment in Römer, the Court stressed that ‘as European Union law stands at present, legislation on the marital status of persons falls within the competence of the Member States’. Moreover, the drafters of the EU Charter of Fundamental Rights seemed to share the same view, when in the Explanations Relating to the Charter of Fundamental Rights, it was pointed out that the Charter Article providing the right to marry (Article 9) ‘neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex’.

Because matters that fall within the ambit of family law are (usually) matters for which there is no European consensus and for which it is believed that each Member State should be left alone to make its own choices, family law is an area in which the EU has no competence to legislate. Thus, it is the Member States that can decide in situations that fall within their jurisdiction, who can marry whom, the requirements for divorce, adoption issues, the regulation of assisted reproduction, and any other issues falling within the ambit of family law. The legal recognition of same-sex relationships is no exception to this, and, hence, it is up to each Member State to decide whether it will allow in its territory two persons of the same sex to marry. This has resulted in an EU which is divided between the (mostly northern and western) Member States which have opened marriage to same-sex couples,[i]and the (mostly central and eastern) Member States which have not,[ii]with some Member States having a constitutional ban on opening marriage to same-sex couples.[iii]

Does the EU Require Member States to Recognise Same-Sex Marriages Lawfully Performed In Another Member State?

Even when the EU does not have the competence to make legislation in a certain area, this does not mean that the Member States have a carte blanche when exercising their powers in that field. This is because Member States must ensure that when they take action in an area which falls to be regulated exclusively by them, they comply with their obligations under EU law.

The next important question, therefore, is what happens to married same-sex couples comprised of (at least) one Union citizen, who move between Member States? If they move to a Member State which has not opened same-sex marriage to its own nationals, do they lose their status as a married couple and, with it, the automatic EU law right to move and reside to the host State together as a couple? Also, once they are within that State’s territory, are they not treated as a married couple for all legal purposes and, hence, are they refused benefits and advantages that are only available to married couples? Or does EU law require Member States which do not offer the option of marriage to same-sex couples in their own territory, to, nonetheless, recognise the status of same-sex couples who lawfully contracted their marriage in another Member State? The answer to this question is not entirely clear.

The reason behind this uncertainty is that the EU legislation which makes provision for the rights (including family reunification rights) of mobile Union citizens, uses the gender- and sexual orientation-neutral term ‘spouse’, without clarifying that this term – at least in this context – refers to both same-sex and opposite-sex spouses. This has proved problematic, because it has been read by some Member States as a licence to refuse to recognise same-sex marriages contracted in other Member States.

More specifically, Directive 2004/38, which lays down the conditions governing the exercise of the right of Union citizens and their family members to move and reside in the territory of another Member State, provides, in its Article 2(2)(a), that ‘family member’ for the purposes of this Directive means, inter alia, ‘the spouse’, and, thus, Union citizens can be accompanied or joined by their ‘spouse’ in the host Member State. One would have thought that a marriage – whether comprised of persons of the same or the opposite sex – lawfully contracted in a Member State, would be considered valid in all other Member States. After all, Recital 31 of the Directive, provides that ‘In accordance with the prohibition of discrimination contained in the Charter, Member States should implement this Directive without discrimination between the beneficiaries of this Directive on grounds such as … sexual orientation’. This, on its own, should suffice for making it clear to the Member States that when implementing the Directive, they must ensure that they do not act in a way which is (directly) discriminatory on the ground of sexual orientation, and, thus, just as they recognise (all) opposite-sex marriages lawfully performed in other Member States they must, also, recognise (all) such same-sex marriages.

In any event, refusing to an LGB Union citizen the right to be joined or accompanied in the host Member State by his or her same-sex spouse can, without a doubt, constitute an obstacle to that person’s fundamental right to move and reside in the territory of another Member State, which stems from the free movement provisions of the FEU Treaty. The rationale of the EU legislature – and the ECJ – for granting family reunification rights to mobile Union citizens, has always been that the refusal of such rights will give rise to a restriction on the exercise of free movement rights (Singh; Carpenter; Metock). It goes without saying that such a restriction will emerge, whether the spouse of a Union citizen is of the same or the opposite sex and hence it appears entirely arbitrary to treat same-sex couples differently from opposite-sex couples. Although the ECJ has not, yet, had the opportunity to rule on whether the refusal of the host State to admit within its territory the same-sex spouse of a mobile Union citizen amounts to a breach of the free movement provisions of the Treaty, a case is currently pending before it (Cocaj), where one of the questions referred is whether ‘registered partnerships’ under Article 2(2)(b) of Directive 2004/38, include same-sex registered partnerships.

 

Once it is found that the refusal to recognise same-sex marriages contracted in other Member States amounts to an obstacle to free movement, the onus will then fall on the recalcitrant Member State to justify its refusal. It seems, nonetheless, that it will be unable to rely on the public policy exception, which is one of the Treaty derogations from the free movement provisions, and this will be so for two reasons. Firstly, since it is engaging in a block refusal to recognise same-sex marriages contracted elsewhere, the requirement laid down in Article 27 of Directive 2004/38, that the measure which limits the exercise of free movement rights is based on the personal conduct of the individual concerned, will not be satisfied. Secondly, national measures can be justified under the Treaty derogations only if they are compatible with fundamental human rights protected under EU law (ERT) and, as will be explained below, a refusal to recognise same-sex marriages contracted in other Member States seems to amount to a breach of Article 21 of the EU Charter of Fundamental Rights and, in particular, the prohibition of discrimination on the ground of sexual orientation, and of the right to human dignity.

A restriction on the exercise of free movement rights is, also, likely to emerge from the simple fact that a same-sex married couple will lose its status or will have its status converted into a ‘lesser’ one (namely, registered partnership), something which will, obviously, have important (negative) implications once the couple is admitted into the territory of the host State. Apart from the hurt feelings and uncertainty that such a loss or ‘downgrading’ of status will cause, it shall, also, give rise to a substantial degree of (practical) inconvenience which, in turn, can lead to an obstacle to the exercise of free movement rights, since the couple – although lawfully married in another Member State – will not be entitled to benefits and advantages reserved to married couples.[iv] For instance, hospital visitation rights or pensions, and tax, social or other advantages, which, under national law, are only available to married couples, will not be granted to the spouses, since in the eyes of the law of the host State, they are not married.

Apart from Article 21 of the EU Charter of Fundamental Rights (see the analysis below) and/or the free movement provisions of the Treaty, some relief in this context can, also, be offered via Directive 2000/78, which prohibits discrimination on, inter alia, the ground of sexual orientation, in the areas of employment, occupation and vocational training. In particular – and applying in this context the principles established in case-law involving stagnant Union citizens (Maruko; Römer; Hay) – same-sex spouses who move to another Member State where they are ‘downgraded’ to registered partners, can rely on the Directive to require the host State to extend to them benefits reserved to opposite-sex spouses, provided that the benefits relate to employment, occupation or vocational training, and provided that the host State considers the two categories of couples (opposite-sex spouses and same-sex registered partners) to be in a comparable situation for the purposes of the claimed benefit. Nonetheless, this is, only, a partial solution to the problem, since it will not offer any remedy to same-sex spouses who move to Member States which do not grant any legal recognition to same-sex relationships or Member States which do not consider – for the specific benefit that is claimed or more generally – opposite-sex spouses to be in a comparable situation with same-sex registered partners. Furthermore, it will not offer any remedy in situations where the claimed benefit or advantage does not relate to employment, occupation or vocational training.

The refusal of the host Member State to recognise same-sex marriages contracted in other Member States of the EU is, also, in breach of fundamental (human) rights that are protected under the Charter and/or as general principles of EU law.

Article 21(1) of the Charter, provides that ‘Any discrimination based on any ground such as … sexual orientation shall be prohibited’. Since all Member States automatically recognise (opposite-sex) marriages contracted in other Member States, a refusal to recognise same-sex marriages, amounts to (direct) discrimination on the ground of sexual orientation. In its Article 51(1), the Charter provides that its provisions are addressed ‘to the Member States only when they are implementing Union law’. Recent ECJ rulings have interpreted this broadly, by noting that ‘The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter’ (Fransson). Accordingly, it would seem that situations which involve measures that lead to an obstacle to the exercise of EU free movement rights can fall within the scope of the Charter. Union citizens can, therefore, rely on Article 21 of the Charter in order to require the Member State to which they move to recognise their same-sex marriage and to admit them within its territory and treat them as a married couple. Of course, Member States may wish to try to justify this instance of differential treatment (e.g. on the need to protect the traditional notion of marriage as a union between a man and a woman), but given that – as made clear in the ECHR context – only ‘particularly serious reasons’ can justify discrimination on the ground of sexual orientation (Dudgeon v. United Kingdom; Smith & Grady v. United Kingdom; Karner v. Austria), they will be faced with an uphill struggle, and, in practice, it is unlikely that they will be able to successfully rely on a justification.

Stripping a same-sex married couple of its legal status seems to be, also, a breach of the right to human dignity of the persons comprising it, which is protected under Article 1 of the Charter and which is, also, a general principle of EU law.[v]Forming intimate relationships with other individuals and choosing to formalise such relationships is an exercise of personal autonomy, which is an aspect of the dignity of every human being. The EU, by prohibiting discrimination on the ground of sexual orientation, (tacitly) admits the equal worth of all individuals irrespective of their sexual orientation, and, with it, the equal moral worth of opposite-sex and same-sex relationships. When a Member State refuses to give effect to the choices of individuals as regards their same-sex relationships and the legal status attached to them, it treats such relationships differently from opposite-sex relationships and it treats them as inferior – and as not having the same moral worth – as the latter. Accordingly, it fails to respect the autonomy and dignity of the individuals who have formed and formalised such relationships. The right to human dignity appears, in fact, to have formed the backbone of the majority Opinion in Obergefell v. Hodges which, taking as its basis that ‘the right to personal choice regarding marriage is inherent in the concept of individual autonomy’ and that ‘[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices’, concluded that the US Constitution should be read as granting to same-sex couples the fundamental right to marry in the same terms that this has always been granted to opposite-sex couples.

Accordingly, it is obvious from the above analysis that the refusal of the host Member State to recognise the same-sex marriages of mobile Union citizens, amounts to an unjustified breach of a number of fundamental rights (free movement and residence rights; non-discrimination on the ground of sexual orientation; human dignity) that these individuals derive from EU law.

Conclusion

As things stand, it is clear that the EU cannot require Member States to open marriage to same-sex couples. Nonetheless, a number of EU law provisions appear to require Member States to recognise same-sex marriages lawfully entered into in the territory of another Member State. Accordingly, Union citizens who move to another Member State should be allowed to be accompanied or joined there by their same-sex spouse andshould be treated as ‘spouses’, once they are admitted into the territory of the host State. Accordingly, the EU can no longer stand idle, turning a blind eye to the violation by some Member States of the fundamental rights of a segment of the EU population (i.e. the LGB population). The ECJ (when given the opportunity) and the EU legislature, should make it clear that EU Member States are required by EU law to recognise the same-sex marriages of mobile Union citizens, just as they do in situations involving Union citizens who are married to an opposite-sex partner.

Further Reading

A. Tryfonidou, ‘EU Free Movement Law and the Legal Recognition of Same-Sex Relationships: The Case for Mutual Recognition’ (2015) Columbia Journal of European Law (forthcoming)

C. Casonato and A. Schuster (eds), ‘Rights on the Move: Rainbow Families in Europe: Proceedings of the Conference:  Trento, 16-17 October 2014’ available at http://eprints.biblio.unitn.it/4448/

D. Gallo, L. Paladini and P. Pustorino (eds), Same-Sex Couples before National, Supranational and International Jurisdictions (Springer, 2014)

R. Wintemute and M. Andenas (eds), Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law (Hart, 2001)

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[i]  The Netherlands (2001), Belgium (2003), Spain (2005), Sweden (2009), Portugal (2010), Denmark (2012), France (2013), UK (2014) (apart from Northern Ireland), Luxembourg (2015), Finland (from 2017), Ireland (popular referendum yielded a positive result; awaiting for the law to be passed), Slovenia (proposal for same-sex marriage currently under discussion).

[ii]  Austria, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Germany, Greece, Hungary, Italy, Malta, Latvia, Lithuania, Poland, Romania, Slovakia. Some of these Member States (i.e. Austria, Croatia, Czech Republic, Estonia, Germany, Hungary, Malta), however, offer to same-sex couples the option of a registered partnership/cohabitation.

[iii]  Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland, Slovakia.

[iv]  A parallelism can be drawn here with ECJ case-law where it was held that the refusal to recognise a surname registered in another Member State or in accordance with the practice followed in another Member State leads to a substantial degree of inconvenience which, in its turn, can impede the exercise of free movement rights. See, most prominently, Case C-148/02 Garcia Avello ECLI:EU:C:2003:539 and Case C-353/06 Grunkin and Paul ECLI:EU:C:2008:559. This parallelism was first drawn in G. Biaggioni, ‘On Recognition of Foreign Same-Sex Marriages and Partnerships’ in D. Gallo, L. Paladini and P. Pustorino (eds), Same-Sex Couples before National, Supranational and International Jurisdictions (Springer, 2014), 376-377.

[v] This right was, also, used by the Court (together with other the right to respect for private and family life protected under Article 7 of the Charter and Directive 2004/83) in order to limit the freedom of national authorities to use various practices when seeking to establish the sexual orientation of LGB asylum-seekers – see A., B, C case (for comments on the case see the piece by Steve Peers in this blog here). 

Barnard & Peers: chapter 13, chapter 20

Photo credit: CNN.com

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Block exclusion on blood donation by gay and bisexual men: a disappointing CJEU ruling

 

Alina Tryfonidou, Associate Professor in EU Law, School of Law, University of Reading

In a much awaited judgment delivered earlier this week in Case C-528/13 Léger, the Court of Justice ruled that permanent Member State bans on the donation of blood by gay and bisexual men which are based merely on the fact that they had had sexual relations with another man, may, in certain circumstances, be justified by the need to ensure a high level of health protection. Below, I will explain why this is a disappointing ruling which may, fairly, subject the Court to accusations of, at best, not going far enough in the protection of LGB rights and, at worst, deep-seated homophobia. Before exploring the reasons behind these accusations, nonetheless, I shall summarise the legal and factual background to the case and the main parts of the Court’s judgment.

The Law

In order to minimise any risk of transmission of infectious diseases as a result of blood transfusion, Directive 2002/98 (‘the 2002 Directive’) sets standards of quality and safety for the collection, testing, processing, storage and distribution of human blood and blood components. The above instrument is implemented by Directive 2004/33 (‘the 2004 Directive’), which, in its Annex III, sets out the criteria for excluding certain categories of persons from blood donations: Point 2.1 of the Annex provides that a permanent ban can be imposed on, inter alia, ‘persons whose sexual behaviour puts them at high risk of acquiring severe infectious diseases that can be transmitted by blood’ (‘the 2.1 category’), whilst Point 2.2.2 of the same Annex, provides that a temporary ban may be imposed on ‘persons whose behaviour or activity places them at risk of acquiring infectious diseases that may be transmitted by blood’ (‘the 2.2.2. category’). The contested French measure – L’Arrêté du 12 Janvier 2009 fixant les critères de selection des donneurs de sang (‘the Decree’) – which was adopted in 2009 in implementation of the 2004 Directive, and which, as its name suggests, sets the criteria for selection of blood donors in France – provides a permanent contraindication to blood donation (only) for a ‘man who has had sexual relations with another man’; other categories of persons, such as persons who have had unprotected sex with a casual partner or who have had multiple partners in the last four months, are only temporarily banned from giving blood.

The Facts

The judgment under examination was a response to a request for a preliminary ruling made to the ECJ from the Tribunal administrative, Strasbourg. The question referred arose in proceedings brought by Mr Geoffrey Léger against the French Blood Agency and the French Minister for Social Affairs, Health and Women’s Rights, challenging the refusal (which was based on the impugned Decree) of the healthcare professional responsible for donations at the French Blood Agency, to accept Mr Léger’s blood donation, on the sole ground that he had had sexual relations with another man. The question that emerged was whether the permanent ban on blood donation by a man who had had sexual relations with another man laid down by the Decree was consistent with the 2004 Directive. In other words, can the fact that a man has sexual relations with another man in itself amount to a valid reason for permanently excluding him from being a blood donor?

The Judgment

The Court began its judgment by noting that permanent deferral from blood donation under the 2004 Directive requires the existence of a greater risk (‘high risk’) of acquiring severe infectious diseases that may be transmitted by blood than that for temporary deferral. The Court, then, explained, that the main question is whether a man who has had sexual relations with another man satisfies the requirement of a ‘high risk’ which justifies the imposition of a permanent ban on blood donation.

The Court explained that this question must be answered by the referring court, which must take into account for this purpose current medical, scientific, and epidemiological knowledge about France. In answering that question, the national court must ensure that the way that it interprets the 2004 Directive is not contrary to the fundamental human rights protected in the EU legal order and, in particular, that it does not breach the prohibition of discrimination on the basis of sexual orientation which is provided in Article 21 of the EU Charter of Fundamental Rights (‘the Charter’). The Court pointed out that the Decree may discriminate on grounds of sexual orientation contrary to the above provision, as it ‘determines the deferral from blood donation on the basis to [sic] the homosexuality of the male donors who, on account of the fact that they have had homosexual sexual relations, are treated less favourably than male heterosexual persons.’ The Court then proceeded to note that this may, nonetheless, be justified under Article 52(1) of the Charter. It noted that although the permanent contraindication provided for in the contested Decree contributes to minimising the risk of transmitting an infectious disease to recipients of blood transfusion and, thus, to the general objective of ensuring a high level of health protection, this needs to be proportionate in order to be justified. In particular it noted that, firstly, the referring court must verify whether scientific or technical progress in the field of science or health (which enables the detection of HIV) now allows a high level of health protection for recipients to be ensured in situations involving men who have had sexual relations with other men and, secondly, even if this cannot be verified, it stressed that ‘a permanent deferral from blood donation for the whole group of men who have had sexual relations with other men is proportionate only if there are no less onerous methods of ensuring a high level of health protection for recipients.’ In particular, as regards the latter, the ECJ pointed out that the referring court must determine whether the questionnaire and individual interview with a medical professional (which are mentioned in the 2004 Directive as methods which enable the determination of the level of risk of individual blood donors) may, in fact, enable medical staff to identify the type of behaviour presenting a risk for the health of recipients and in this way impose a more limited exclusion, which does not cover the entire group of men who have had sexual relations with a man.

Comments

This case comes at a time when a number of countries – both within and outside the EU – have relaxed, or consider relaxing, their blanket bans on blood donation by gay and bisexual men. In fact, France itself has, in recent months, begun to examine whether it should relax the ban at issue in this case. Bans on blood donation by gay and bisexual men were introduced back in the 1980s, in response to the AIDS epidemic, as it was widely considered that men having sex with men were more likely to contract HIV, which is the virus that causes AIDS. It is worth pointing out that recent studies have shown no change in the safety of blood supply in countries which have relaxed restrictions on blood donations by gay and bisexual men.

At first glance, one may view the judgment in Léger favourably, in that the Court does admit that blood donation bans which are purely based on the fact that a man has had sex with another man are discriminatory on the ground of sexual orientation and, thus, are contrary to Article 21 of the Charter, unless justified. In fact, the Court not only provides detailed guidance to the national court for determining whether such bans are justified but, also, prompts the latter to apply a strict proportionality test, by examining whether it is possible to achieve the same aim (i.e. a high level of health protection) by adopting less restrictive measures, this demonstrating that a finding that a ban is considered by the national authorities (merely) reasonable does not suffice for justifying it. Accordingly, the judgment makes it clear that Member States no longer have a carte blanche when determining whether – and to what extent – they will ban or restrict blood donations by gay and bisexual men but they must ensure that they comply with EU law and, in particular, with EU fundamental human rights and the principle of proportionality.

Nonetheless, a closer look at the judgment reveals that there is a fundamental flaw in the Court’s reasoning and this is that it perpetuates stereotypical assumptions about the sexual behaviour of gay and bisexual men, which contribute to the continuing stigmatisation of this segment of the EU society. In particular, by holding that in certain circumstances permanent bans on blood donation which are imposed automatically when a man declares that he is gay or bisexual are permitted under EU law, the Court implies that it is acceptable to use a person’s sexual orientation for the purpose of making assumptions about his sexual behaviour, in this context the assumption being that all gay and bisexual men engage in promiscuous, unprotected, sex. Moreover, maintaining a complete ban on blood donations by all gay and bisexual men appears to entail a significant contradiction when this is done in Member States like the Netherlands or Belgium, which have been pioneers in permitting same-sex marriage. Isn’t it contradictory to recognise that some gay and bisexual men may wish to marry their long term partner and have a stable, committed, and monogamous relationship with him, whilst at the same time a permanent ban on blood donations by all gay and bisexual men is maintained, because it is assumed that they are (all) engaging in promiscuous sexual behaviour which places them at a high risk of contracting serious disease? Accordingly, instead of reinforcing stereotypes which lead to inaccurate assumptions about a certain part of the population (gay and bisexual men), the Court should come to terms with reality and recognise that there is a wide range of sexual behaviours among men and women, and among LGB and heterosexual individuals and, thus, the sexual behaviour of an individual depends neither on his or her sex nor on his or her sexual orientation. This means that the sexual orientation of a person should not be treated as the factor that defines his or her sexual behaviour and, hence, it is inappropriate to consider that a person engages in sexually risky behaviour onlybecause of their sex or sexual orientation.

Another problematic aspect of the judgment is that, unlike the Advocate General, the Court does not appear concerned at all by the fact that the contested measure draws a (completely unjustifiable) distinction between gay and bisexual men, on the one hand, and other segments of the population which engage in behaviour which puts them at a high risk of contracting a serious disease, on the other. More specifically, the contested French Decree appears to be singling out gay and bisexual men as the only category of persons that deserves to be permanently excluded from blood donations. Sex workers, heterosexual persons who have unprotected sex with multiple partners, and intravenous drug users are, clearly, categories of persons who are in high risk of contracting a serious disease that can be transmitted via blood transfusion. Why, then, is it acceptable that the French Decree does not permanently exclude these categories of persons from blood donation? Doesn’t this fact, in itself, demonstrate that the permanent ban imposed on gay and bisexual men is unjustifiable and disproportionate? Moreover, given that the 2004 Directive and the French Decree require blood donors to answer questions about, inter alia, their sex life, and to have an interview with medical professionals, the latter are able to single out individuals (rather than categories of individuals) who in actual fact(rather than as a result of a mere assumption) engage in behaviour that places them at a high risk of contracting a serious disease. This is another factor that demonstrates that maintaining a blanket and permanent ban on blood donation by gay and bisexual man is disproportionate in all circumstances and cannot be considered justified in certain contexts (which is what the Court appears to suggest in its judgment).

Accordingly, and agreeing with the Advocate General, the Court should rule that ‘the mere fact that a man has had or has sexual relations with another man does not, in and of itself, constitute a sexual behaviour placing him at a high risk of acquiring severe infectious diseases which can be transmitted by blood’. The correct approach would, hence, be for the Court to respond in this case by saying that Member States should under no circumstances be permitted to impose a permanent ban on blood donation on men simply and merely because they are gay or bisexual. The sexual orientation of an individual can under no circumstances be considered a sufficient reason for including him or her within a category of persons who engage in risky sexual behaviour; rather, the inclusion in such a category should be strictly dependent on the actualbehaviour of the individual. This means that Member States should be required to provide in their laws that medical professionals should, in all instances, use the interviews and questionnaires which are, already, provided in the 2004 Directive, as a means to identify persons who should either permanently or temporarily be prevented from donating blood.

Barnard & Peers: chapter 20, chapter 21 

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Does EU law prohibit condoning discrimination against breastfeeding women?

Steve Peers

Yesterday, Nigel Farage, the leader of the UK Independence Party (UKIP) stated that while he had no personal objection to women breastfeeding in public, it should be for businesses to decide on their own rules. Perhaps they could ask breastfeeding women to “sit in a corner”. In any event, it shouldn’t be hard to breastfeed a baby in a way that wasn’t “openly ostentatious”.

He was referring to a case in which a restaurant asked a woman to place a napkin over her baby. Another café has recently suggested that women should breastfeed in the disabled toilets.

There’s an interesting legal dimension to this issue. First of all, is it legal to discriminate against breastfeeding women? Secondly, to what extent is it illegal even to encourage such discrimination, or at least to condone it? The latter is a fair description of Farage’s comments.

Discrimination against breastfeeding women  

As some press articles have pointed out, the Equality Act 2010makes it illegal in the UK to discriminate against breastfeeding women in employment or public places like restaurants, subject to very limited exceptions. There’s an excellent summary of the law here, on the Maternity Action website. So businesses can’t make up their own rules on this issue, as Farage seemed to assume – although perhaps his point was that the law ought to change.

What about EU law? There are separate Directives concerning sex discrimination in employment, and sex discrimination as regards goods and services offered to the public, which would apply to restaurants. Neither of them explicitly bans discrimination as regards breastfeeding. But the Court of Justice of the European Union (CJEU) has long ruled that discrimination against pregnant women is discrimination on grounds of sex. Its reasoning is that even though not all women are, have been, or will become pregnant, only women can be pregnant, and so discrimination on grounds of pregnancy is therefore direct sex discrimination. Logically this reasoning applies by analogy to breastfeeding: even though not all women will become mothers, or breastfeed if they do, only women can breastfeed.

If this is correct, there’s a ban on discrimination against breastfeeding mothers right across the EU, and the UK’s law simply reflects its EU obligations. Of course, leaving the EU (UKIP’s key policy) would mean that the UK no longer had such obligations.

Endorsing or condoning discrimination

Of course, Nigel Farage didn’t himself insist that a breastfeeding mother had to cover herself with a napkin in a restaurant, or actually make a new mum sit in the corner. He merely said that he could accept it if businesses chose to do this – even though (which he didn’t mention) this would be illegal.

There’s an interesting line of case law of the CJEU on the circumstances in which publicly supporting discrimination gives rise to legal liability. First of all, in AGM COS.MET, a Finnish government official disparaged the safety of Italian lifts. Sales of the lifts promptly plummeted (as it were), and the manufacturer sued the Finnish government for damages. The CJEU ruled that the State would be liable for its official’s comments if, on the facts of the case, those comments were attributable to the State. One factor to consider was whether the State distanced itself from those comments. On this point, it’s interesting to note that David Cameron’s office immediately denounced Farage’s remarks yesterday. This is probably not an attempt to reduce the government’s legal liability, but rather a bid to hoover up the female votes that Farage apparently doesn’t really want that much. But the effect is the same.

So can there be liability for discriminatory comments by private individuals? In Feryn, the CJEU said that a business could be liable for stating publicly that it would not hire ethnic minorities, due to objections by its customers. That’s broadly similar to Farage’s point that other restaurant customers might be ‘embarrassed’ by ‘ostentatious’ breastfeeding. Perhaps it would distract their attention too much from gazing at Page 3 of The Sun.

Later on, in the Associatie Accept case, the CJEU ruled that a homophobic rant by the part-owner of a football club could give rise to liability for that club, if there was a perception that he had a significant influence on that club's policies. While Nigel Farage certainly seems to influence government policy generally, in this particular case David Cameron’s response to Farage's comments yesterday would rule that out.

So as things stand, Nigel Farage’s comments would not give rise to personal or state liability – although lawsuits against the restaurants that discriminate against breastfeeding women would be a different matter. And things would also surely change if Farage were the Deputy Prime Minister – although in that case, the UK’s EU membership and the Equality Act would likely not last very long in any event.


Cartoon: Los Angeles Times

Barnard & Peers: chapter 20

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LGBTI asylum-seekers: the CJEU sends mixed messages

 

 

Steve Peers

 

Many countries worldwide still impose severe criminal sanctions and other forms of ill treatment on people who are gay, lesbian, transgender or intersex (LGBTI). Fortunately, according to the CJEU, any non - EU citizen suffering persecution on grounds of sexual orientation can seek asylum in the EU, claiming that they are part of a 'particular social group' being persecuted, in accordance with the EU's qualification Directive.
 

The Court's prior case-law (the X, Y and Z judgment of 2013) further clarifies that they do not have to keep their sexuality hidden in their country of origin in order to claim refugee status. But the mere existence of criminal law prohibitions in the country of origin doesn't necessarily mean that LGBTI asylum-seekers are being persecuted: the crucial question is whether such laws are actually being enforced.
 

Before getting to the issue of persecution, though, how can the authorities check whether asylum-seekers are gay or lesbian in the first place? In today's judgment in A, B and C, the CJEU rules out the most obnoxious forms of procedures to determine sexual orientation, but still leaves some leeway for dubious behaviour by national authorities.
 

The judgment
 

Asked by a Dutch court to clarify what national authorities can do to establish the sexual orientation of asylum seekers, the CJEU begins by stating that a mere self declaration by the asylum seeker is not sufficient. This is only the starting point of the assessment.
 

Although EU legislation does not address the issue of the credibility of asylum seekers in much detail, the CJEU states that the process of determining credibility must be consistent with the EU Charter of Fundamental Rights. In principle, the same rules apply to all categories of asylum seekers, but they can be adapted to particular groups.
 

First of all, the CJEU states that questions 'based on stereotypical notions may be useful' to national authorities. But they cannot base their decisions purely on such notions, and the asylum seeker's inability to answer such questions cannot mean that he or she has no credibility.
 

Secondly, the CJEU rules against detailed questioning about asylum seekers' sex life, on the grounds that this would breach Article 7 of the Charter (the right to privacy). (On the questions which are asked in practice, see Colin Yeo's earlier post on the Free Movement blog).
 

Thirdly, the CJEU rules that LGBTI asylum-seekers should not perform sex acts, produce films of their sexual activities or undergo medical testing to prove their orientation. This would breach Article 1 of the Charter (the right to human dignity) as well as Article 7.
 

Finally, the CJEU rules that Member States cannot assume that LGBTI asylum-seekers lack credibility simply because they didn't raise the issue of their sexuality as soon as possible, in light of the sensitivity of the topic. However, the Court does not rule on some additional procedural issues considered in the Opinion of the Advocate-General.
 

Comments
 

The Court's judgment frees LGBTI asylum-seekers from many particularly obnoxious forms of testing and questioning. In particular, it frees them from phallometric testing. The Court didn't mention the details of this process, but suffice it to say that it involves examining men's physical reaction to viewing pornography. The judgment should have added that this process is also a breach of Article 4 of the Charter, as a form of degrading treatment.
 

As for producing films or engaging in sex acts, the Court was right to rule out implicitly the possible waiver of privacy rights on the grounds that other asylum-seekers would be pressured to do the same thing.
 

The ruling also usefully clarified that LGBTI asylum-seekers do not need to declare their sexual orientation as soon as possible. This takes account of the social reality for people who have just fled countries where their personal identity is taboo.
 

On the other hand, today's judgment is unhelpful to the extent that it refers to the possibility of 'useful stereotypes' when questioning LGBTI asylum-seekers. Although the Court only refers in this context to questions about the existence of NGOs supporting LGBTI individuals, many other stereotypes exist. The Court ruling might be interpreted to endorse assumptions that (for instance) gay men don't like sports, or that lesbians have short hair. Such stereotypes might be only mildly annoying on a day - to - day basis. But if they are used in order to reject an asylum claim, they could be fatal to the person concerned.
 

Admittedly, the Court rules out relying on the answers to such questions as the sole basis for denying asylum. Nor is it possible to decide that an asylum seeker who can't answer such questions has no credibility. But it is still possible that an asylum seeker will lose credibility if he or she gives the 'wrong' answer to these questions; and those answers can form part of the assessment of credibility.

More broadly, the Court's approach fails to take sufficient account of the wide diversity of the expression of human sexual identity, especially in countries where homosexuality is taboo.
 

While some questions relating to LGBTI asylum-seekers' credibility must be acceptable, given that the Court ruled out self - declaration as an automatic route to establish such credibility, the Court could surely have found a better form of words than 'useful stereotypes'. It could, for instance, have endorsed the relevant UNHCR guidelines discussed in the Advocate-General’s opinion.

Although there are many positive aspects of today's judgment, the CJEU's unjustified aversion to human rights soft law may cause problems for many LGBTI asylum-seekers in practice.

Barnard and Peers: chapter 26

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Surrogate Mothers' Day in the Court of Justice: Reflections on EU sex equality law

Steve Peers

Women who would love to give birth to children, but who are unable to do so for medical reasons, have always understandably attracted great public sympathy. Historically, the only option for them was adoption. But in the last few decades, other options have become available, in particular IVF and surrogacy. 

While EU law does not regulate any of these issues as such, it does regulate maternity leave, by means of the pregnant workers' Directive. Moreover, some other aspects of the employment implications of pregnancy are addressed by the Directive on sex discrimination in employment. For instance, the latter Directive bans discrimination against a woman who is undergoing IVF treatment but is not yet carrying an unborn child, according to the judgment of the Court of Justice of the European Union (CJEU) in Mayr.

But what is the position of surrogate mothers as regards maternity leave? Today the CJEU addressed that issue for the first time, in the judgments in CD and Z. The CD case concerns a British woman who is the commissioning mother of a child who was genetically fathered by her partner, while the Z case concerns an Irish woman who is the commissioning mother of a child who is genetically hers and her husband's. In both cases, a surrogate mother carried and gave birth to the child.

The Court took the view that the pregnant workers' Directive, which sets out the right to maternity leave, can only apply where the same woman becomes pregnant, gives birth and then takes maternity leave as regards a newborn baby (or babies), applying the Mayr judgment, which stated that the Directive only applied once a person was pregnant. The sex discrimination directive could not apply either, because a commissioning father would be treated the same as a commissioning mother; there was no evidence of indirect discrimination; and its ban on discrimination against women who have been pregnant or gone on maternity leave could not apply, since the pregnant workers' Directive did not apply. Since the issue fell outside the scope of EU law, the EU Charter could not apply as regards assessing the validity of the sex discrimination Directive.

In the Z judgment, the CJEU reiterated its reasoning, and also added some further points. It noted that the sex discrimination Directive expressly states that adoption leave is an optional matter for Member States. It then answered questions about the framework equality Directive, notably about the ban on discrimination on grounds of disability in that Directive. In the Court's view, since the EU Directive only applied to discrimination relating to employment, the disability in question has to hinder the worker's participation in professional life. But Ms. Z's condition did not affect her access to employment. Finally, the Court ruled that the validity of the framework equality directive could not be reviewed due to incompatibility with the UN Convention on the Rights of Disabled Persons (which the EU has ratified), because that Convention was only 'programmatic'.

These two different cases were the subject of opinions by two different Advocates-General, who expressed two radically opposed viewpoints. The CJEU essentially followed the opinion of Advocate-General Wahl in the Z case. On the other hand, Advocate-General Kokott, giving the opinion in the CD case, took the view that in light of social developments and the EU Charter of Fundamental Rights, the pregnant workers' Directive was capable of applying to cases where one woman carried and gave birth to a child, while another woman then took care of the newborn baby. Inspired perhaps by the judgment of Solomon, she then suggested that the maternity leave should be split between the two women concerned.

Comments

It seems odd that women who undoubtedly consider themselves as being new mothers and who are indisputably looking after a baby who is genetically theirs (or their partner's) fall outside the scope of EU law, given its detailed regulation of maternity leave. Certainly, the key feature of these judgments - the intention that the pregnant workers' Directive apply to the same woman who got pregnant, gave birth and looks after a child - is surely a correct assessment of the legislature's intention. Having said that, the application of the Mayr judgment is a little unconvincing, since it concerned the question of whether the woman concerned had ever got pregnant at all, long before she had a baby to look after.

The EU legislature's decision to treat adoption leave differently from maternity leave and pregnancy in the sex discrimination Directive is undoubtedly clear too. And logically, since the framework equality Directive only applies to employment, it can only be applied to a disability linked to employment. But the CJEU's application of this principle is not fully convincing. In fact, the Z case is difficult to distinguish on this point from the Coleman judgment, where the disablity of the worker's child was in principle connected to her loss of employment, so the Directive applied. If the Directive applies where there is a link between the worker's employment and another person's disability, why does it not apply where there is a link between the worker's employment and the worker's own disability, as long as that disability has an impact, however indirect, upon her employment - in this case, her maternity leave?

As for the UN disability rights Convention, the Court's ruling that it cannot be relied upon to challenge the validity of EU law is, with great respect, clearly wrong. The Convention includes a ban on disability discrimination in its Article 5(2): this is exactly the sort of equality clause that the Court usually accepts can be directly effective, and which therefore provides for a ground for challenging the validity of EU acts. A better approach, leading to the same result, would have been to rule that the application of the Convention to the issues of the Z case falls within the competence of the Member States, not the EU (the Convention is a 'mixed agreement'), given the Court's ruling that EU legislation was not applicable to this case anyway.

There is, of course, direct discrimination in these cases: not between men and women (since men can also be infertile), but between different categories of mothers: those who are looking after a child whom they have given birth to, and those who are looking after a child whom they have not given birth to. The two groups are not similarly situated as regards pregnancy and childbirth, but they are in an identical position as regards childcare. Surely the general obligation to ensure equal treatment set out in Article 21 of the Charter could have been relevant here.

Furthermore, the Court's assertions as regards indirect discrimination are not convincing, as it is surely more likely in practice that women, rather than men, will want to take time off work to look after a newborn. Moreover, in a case involving same-sex couples, it could be arguable that a failure to give them equal treatment with opposite-sex couples as regards maternity or adoption leave would be discriminatory on grounds of sexual orientation, given that it is not possible for same-sex couples to have a child who is genetically the child of both of them.  

The Court's literal approach to the EU legislation has also lost sight of its underlying purpose in two respects. First of all, a woman who wishes to take time off work following the adoption of a child (whether there has been a surrogate mother involved or not) faces the same work/life balance issues as a woman who has given birth to a child. The underlying goal of EU law on sex equality as regards employment is to ensure that women have equal access in practice to the workforce. Women who have adopted a child are bound to face problems in that regard, similar to those facing women who have given birth. Secondly, from the perspective of the best interests of the child (an issue addressed by Advocate-General Kokott), and the objective of ensuring that a mother can bond with her child (referred to expressly by the Court), it should not matter whether that child has been adopted or not.

These points lead us to a more radical question: why should the EU legislature itself facilitate massive inequality as regards the care of newborn children? Advocate-General Kokott, noting that the Charter requires the child to have contact with both its parents, then applies that to the rights of the mother. But if we are going (as she suggests) to sever the link between pregnancy and childbirth, on the one hand, and childcare on the other, then why should we assume that the childcare has to be provided by the mother, by means of granting women maternity leave, but not granting parallel (or transferable) paternity leave to men? Indeed, from this perspective, the more generous the maternity leave, the greater the distinction between the roles of men and women as regards childcare, with a corresponding greater impact upon engagement in the workplace. Simply put, maternity leave is the gilded cage of sex discrimination.


Barnard & Peers: chapter 20

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Holocaust denial and hate crime: Can the EU and its Member States do more?

Steve Peers

The European Commission has chosen today, the International Holocaust Remembrance Day, to release its first report on Member States' implementation of the EU Framework Decision on combating racism and xenophobia by means of criminal law.

Implementing the EU legislation

Member States had to implement this law, a relic of the pre-Lisbon 'third pillar' of EU law (setting out special rules on policing and criminal law measures) by December 2010, and the Council had to assess the Member States' implementation of the rules, on the basis of the Commission report, by November 2013. So the Commission report is a little late, but most such reports arrive even later (due to Member States' tardy reporting on their implementation). All Member States must apply this law, although the UK is planning to opt out as of December 2014, and does not intend to apply to opt back in.

The first crucial legal question is whether Member States have properly implemented their obligations under the Framework Decision. They are obliged to criminalise: public incitement to violence or hatred based on race, et al; dissemination of tracts to the same end; the denial, trivilisation et al of war crimes, genocide and crimes against humanity as defined in the Rome Statute establishing the International Criminal Court; and denial or trivialisation of the Holocauat.

The Commission identifies some apparent breaches of the Framework Decision here; for instance, two Member States insist on some further conditions being met before criminal liability attaches to the first category of actions. Some Member States do not specify that the crimes can apply to an individual or to a group. Two Member States refer to 'nationality' instead of 'national origin'. As regards the Rome Statute crimes and Holocaust denial, some Member States' laws do not refer to all types of actions referred to as regards the first type of crime, or do not fully reflect the obligations as regards Holocaust denial. In particular, two Member States only criminalise Holocaust denial in relation to their own nation or citizens. Some Member States have no specific provisions on these issues, although arguably a general law on incitement to violence that fully covers all of the relevant actions would be sufficient.

According to the EU law, Member States must either provide for racist and xenophobic motives to be considered an aggravated circumstance, or provide that courts may take those motives into account. Some Member States restrict this obligation to certain violent crimes only. Furthermore, some Member States attach conditions to the rules regarding liability for legal persons, or do not fully apply the rules on jurisdiction, in particular as regards offences committed over the Internet.

As to the future, the Commission makes a number of recommendations to Member States, as regards (for instance) special hate crimes units, the exchange of information, cross-border cooperation, data collection, the rights of victims and comments by opinion leaders. The Commission intends to discuss the correct implementation of the Framework Decision with Member States up to 1 December 2014 - the date when it can begin infringement proceedings as regards pre-Lisbon third pillar legislation. It does not make any mention of any amendment of the legislation, or of the specific issues which the Council is required to review (the issue of judicial cooperation as regards the relevant crimes).

Comments

The Commission cannot be criticised for holding off on bringing infringement proceedings, since it cannot do so until the end of this year. After that point, this legislation will be another EU measure which the Commission ought to enforce vigorously by means of infringement proceedings if it is, as it claims, committed to ensuring the full implementation of the EU Charter of Fundamental Rights in practice.

It would be possible to clarify the interpretation of the Framework Decision if it were amended, and more importantly, its provisions could be improved. For instance, the recommendations which the Commission makes to Member States in its report could be incorporated into the legislation (except for the point concerning the rights of victims, which will become binding anyway once the EU's crime victims directive is implemented in 2015). The Commission does not consider the issue of possible amendments at all.

More significantly, the scope of the Framework Decision (or rather, the future Directive) could be enlarged, to cover other forms of hate crime. The Commission perhaps avoids mentioning the issue of amendment because of the lack of a specific legal base dealing with this issue in the current Treaties. True, racism and xenophobia are not listed among the crimes the EU can combat in Article 83(1) TFEU. But they surely fall within the scope of Article 83(2) TFEU, which gives the EU power to adopt criminal law measures when necessary in relation to a matter which the EU has harmonised. Since the EU has banned discrimination on grounds of race as regards all goods and services (inter alia), and it surely would interfere with equal access to transport, shopping and recreation (for instance) if crimes of racial hatred were committed, it could be argued that further EU measures could be adopted on this basis. The same would apply to bias crimes against women, given the scope of EU harmonisation already on the issue of gender equality.

However, it would be harder to argue that a legal power exists for the adoption of EU measures banning hate crime on grounds of sexual orientation, disability, religion or age, since the EU has only harmonised the law as regards equality in employment as regards those issues. When or if the Commission's proposed Directive extending equal treatment as regards these four grounds of discrimination is adopted, then a further measure relating to hate crime on the same grounds could be proposed.


Barnard & Peers: chapter 25, chapter 20

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