In Q4 2020, the European Commission is scheduled to publish its LGBTI Equality Strategy. This will be the Commission’s first strategy towards ending discrimination against LGBTI people within the EU’s borders, after almost a decade of discussions. Though non-legislative, it is a clear sign to Member States. Here is an outlook on the current policy debate around LGBTI rights in two of the main European markets: France and Germany.
The LGBTI Strategy was originally put forward as one of former Commission President Jean-Claude Juncker’s objectives. But other initiatives were ultimately prioritised.
In a context of increased societal discussions, momentum has built up again and the Commission is now committed to the adoption of an LGBTI Strategy.
It is expected to build on the lessons learned from the Commission’s previous actions to advance LGBTI equality, which have been recorded since 2015 in reports on the List of Actions to Advance LGBTI Equality. The 2019 edition of this report highlighted the progress made over the past four years. In particular, the growing number of Member States recognising the LGBTI communities’ “need for protection against discrimination in all areas of life” and strengthening the “legal recognition of same-gender couples.” The Commission is also encouraged by the conclusions of a September 2019 Eurobarometer survey on “Discrimination in the EU” that found that 76 per cent of respondents now believe that “lesbian, gay and bisexual people should have the same rights as heterosexual people.”
However, obstacles toward LGBTI equality remain across the EU. First and foremost, those are due to Member States’ differentiated policies on the issue. In fact, a 2019 survey by the EU Fundamental Rights Agency revealed that 43 per cent of LGBTI people felt discriminated against in the past 12 months. And while on average the support for LGBTI equality across the EU went up by 5 per cent, it also went down in 9 Member States. Violent attacks against LGBTI people have been on the rise, including in Germany and France, and most Member States have yet to propose legislation supportive of transgender and intersex people.
Germany likes to view itself as one of the most open and socio-liberal countries in the EU. But in 2020, it only ranked 16th out of 49 countries in ILGA-Europe’s annual Rainbow Europe report, which analyses the legal rights and protections for queer, trans and intersex people across the continent. And while strides have been made in recent years – the Federal Government established marriage equality (2017), recognised a third sex for Intersex people (2019), and passed a partial ban on conversion therapy (2020) – the Federal Anti-Discrimination Agency publicly acknowledged that this ranking cannot be a satisfactory result for the German government.
46 per cent of queer people in Germany say that they do not live openly. Homophobic and transphobic hate crimes are rising. But only the Berlin Police and Justice Departments have offices dedicated to these crimes. And while they are not yet legally recognized or prosecuted as such, official statistics on these hate crimes are unlikely to show the whole picture.
Married lesbian couples continue to face lengthy adoption processes as the second parent isn’t automatically recognized on the birth certificate of their child. This stands in direct contrast to heterosexual couples, where the husband is registered as father independent of his biological connection to the child. A recent proposal for reform by the opposition Green party was voted down by the governing CDU and opposition parties FDP and AfD, though Franziska Giffey, Minister for Family Affairs and member of the minor coalition partner SPD voiced strong support for the proposal.
The trans community has long been advocating for a reform of the transsexual law (Transsexuellenrecht). The law, which was first introduced in 1980, builds the legal framework for a gender transition and is largely seen as outdated and discriminatory.
Queer men continue to be banned from donating blood if they have had sexual intercourse with other men in the past 12 months. A topic that has garnered increased attention recently given the current global health crisis. But Minister of Health Jens Spahn, an openly gay man himself, has stated that he does not intent to propose any reform on the matter.
In France, LGBTI rights are progressing faster than mindsets. Over the past decade, this has led to a number of heated debates with protesters taking to the streets to voice their opposition to the political and legislative efforts advancing LGBTI rights in the country.
The most recent example of this fracture in French society came about with the 2013 adoption of the “Mariage Pour Tous,” (Marriage for all), which legalized same-sex marriage and adoption for same-sex couples. But it did not grant automatic co-parenting rights for same-sex couples in civil partnerships, nor did it allow access to medically assisted procreation (MAP) to lesbian couples. The passage of this law provoked outrage in the conservative, right-wing and religious sections of the French society, who united under the “Famille Pour Tous” (Family for all) banner at weekly protests for over a year. While the protesters represented a minority of the population, they succeeded in making this one of the key political debates of the year and galvanized much of the media’s attention.
The fight for equal access to MAP (known as PMA in France) procedures has now become the center of the French LGBTI equality debate. A current legislative proposal would make MAP available to female same-sex couples and single women, eliminate the requirement of pathological infertility and recognize two women as parents. However, the draft law has been harshly criticized by civil society for various shortcomings such as failing to recognize intersex and trans people.
Since the 1980s, France has enacted a series of laws combating homo- and transphobia. In 2003, homophobic crimes became legally recognized as hate crimes and in 2004, the law was extended to further recognize homophobic remarks as hate speech. In 2012, France’s penal code was further extended to recognize discrimination based on gender identity.
Nevertheless, these attacks have been on the rise in France, according to the annual report of SOS Homophobie. In 2019, an alarming 26 per cent increase was recorded and in 2020, France ranked 13th out of 49 countries in ILGA-Europe’s annual Rainbow Europe report, dropping down 4 places form 9th in 2019.
The Franco-German influence on the EU is undeniable, which makes their national records particularly significant. While both nations have notable achievements to show for, they also exemplify how far there is still to go towards the advancement of LGBTI rights across the EU. The European Commission’s Equality Strategy is a first but important step.
LGBTI advocates have been pushing for such a strategy for years and hopes are high that it will mark a turning point in the protection of queer rights across the EU. Ultimately, however, it will remain up to Member States to decide whether to follow and implement the Commission’s recommendations.