Transcript Sexual Orientation in EU Law - Faculdade de Direito da UNL

Sexual Orientation in
EU Law
Helena Pereira de Melo
[email protected]
November 2013
1
Oscar Wilde (1854 -1900)
2
Lord Alfred Douglas (1893)
3
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

4
“’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”.
5
6
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.
7
Alexandrina Vitoria (1819 – 1901)
8
“Female
homosexuality does
not exist"
“ladies would never engage in such despicable
acts…”
9
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!
10
A gentleman bird
11
Sexual orientation:
1.
2.
3.
4.
Heterosexual – “opposite” sex
Homosexual – same sex
Bisexual – both sexes
Gender-transgressing identity or
expressions
12
Anne Fausto-Sterling
The Five Sexes: Why Male and
Female Are Not Enough
13
Sexing the body:
a)
b)
c)
d)
Male
Female
Intersexed - hermaphrodites
Gender reassignment – transsexuals
– the third sex?
14
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."
15
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”

16
Matt Dallas of Kyle XY is dating that guy from
Mean Girls, Jonathan Bennett
17
Homosexuality - characteristic:
 Invisible
 Not
chosen (?)
 Genetically determined (?)
 Leads to negative discrimination in
Europe.
18
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
19
What if you could know whether your
baby is gay?
20
Medieval ages:
21
Legal history of homosexuality - 2
rules:
1.
2.
Criminal rule – sexual activity is
between man and woman
Marriage rule – for legal marriage you
need to be of opposite sexes
22
XIX - XX Century 



Decriminalization (Napoleonic Penal Code –
1810)
Recognition of homosexual identity and subcultures
Recognition of same-sex unions as marriages
Human rights issue - Anti-homosexual
discrimination
23
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.
24
25
26
27
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
28
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))
29



“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)
30
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.”
31
CFREU:

“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 orientation shall be
prohibited.” (article 21)
32
The Directives:
 The
Racial Employment Directive and
the Employment Equality Directive
 Require the Member States to prohibit
discrimination on the grounds of
sexual orientation
33
Material scope:
 Employment
Directive – employment;
 Racial
directive – employment,
education, housing; requires the
Member States to establish a body for
the promotion of equal treatment.
34
Both apply to:
a)
b)
c)
d)
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
35
The Racial Directive applies also to:
a)
b)
c)
d)
Social protection, including social security
and healthcare;
Social advantages;
Education;
Access to good and services available to
the public, including housing
36
Exceptions:
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

37
Marriage of 2 homosexual priests
38
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

39
Forms of prohibited discrimination:
1.
2.
3.
4.
Direct
Indirect
Harassment
Instructions to discriminate
40
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”
41
42
Principle:
 Direct
discrimination
cannot
be
justified
 Exceptions – e.g. genuine occupational
requirements or employers with a
religious ethos
43
Being gay isn’t enough to get kicked out
44
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)
45
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”
46
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”
47
Survival pension: only for widows
48
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”
49
50
4. Instruction to discriminate
“an
instruction to discrimination against
persons on grounds of sexual orientation
shall be deemed as discrimination”
51
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”
52
Join the army
53
Personal scope:
 The
Directives are applicable to all
persons,
not
considering
nationality, citizenship or residence
status;
 Natural and legal persons.
54
Law firm:
55
I have been discrimintated!
56
To whom complain?
 Judicial
proceedings (civil, criminal,
labour, administrative…)
 Mediation or conciliation proceedings
 Ombudsmen
 Labour and education inspectors
57
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
58
59
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
60
Victimization
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
61
Low volume of case law discrimination:
a)
b)
c)
d)
e)
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
62
63