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Gay rights in Europe - another front of variable geometry

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Lesbian, gay, bi-sexual and trans-gender (LGBT) unions are treated very differently within the member states of the EU. If the Union applied the same kind of zeal in imposing mutual recognition of contracts in this area as in commerce, its legitimacy as a democratic force would be greatly enhanced
Alessandro Valera
17 December 2011

When in 2001 the Netherlands became the first country to grant same-sex couples the right to get married and adopt children, many abroad looked at this as the latest eccentric Dutch approach to social policy. As with legalised marijuana or prostitution on-display, this was expected to remain a peculiarity of Europe’s liberal Dutch heart. Contrary to expectations, the last decade has witnessed the rapid expansion of same-sex unions regulations across the continent. At the moment, 16 out of the 27 EU member states have some legal provisions for gay and lesbian couples in long-term relationships. All western European countries except Italy and Greece have at least some form of registered partnership while five countries (plus Norway and Iceland) have full marriage equality. Slovenia, Hungary and the Czech Republic also offer registered partnership to same-sex couples.

Due to the economic interconnectedness of the EU countries, every year more and more of these couples want or need to relocate for work, leisure or retirement to another EU country. But often, that country does not recognise their union. While only a handful of couples faced this issue ten years ago, nowadays a sizable group of EU citizens do not fully enjoy the right of freedom of movement and freedom to work across the Union.

The EU Charter of Fundamental Rights makes it clear that “the right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights”. So nobody is dreaming of asking the EU to impose gay marriage across its territory as it would be outside of its competences. However, many activists, lawyers and people with common-sense are asking the EU to enforce a principle that is often applied across EU law, that of mutual recognition. This means that member states should automatically recognise any civil contract that is approved anywhere in the EU.

Aside of the symbolic value that not having your marriage recognised in another country can have, there are a series of practical problems that make life of LGBT people in Europe harder than their straight counterparts. Take the case of Marco, one of the many Italians who lives in London. He’s in a Civil Partnership with a Brazilian man, who has received a permit to stay in the UK as Marco’s spouse. Marco was offered the job of head of the Milan office by his employer, a multinational. He had to refuse this huge opportunity, as in Italy, his non-EU husband would be considered a perfect stranger and would not be given a visa to reside in the country. Or consider the case of Fernando and Nigel, united after 30 years together in a Civil Partnerships in the UK, who decided to retire in France. When Nigel died in 2008 in Perpignan and left all of his goods, including the French house, to his husband, the French government applied a 60% tax on inheritance, as- according to French law that does not recognise civil partnerships as equivalent to the French “PACS”- Nigel and Fernando were unrelated. Fernando was forced to sell the house to pay his taxes.

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This gets even more complicated when there are children involved. Families with same-sex parents are forced to live in conditions where only one of the two parents is recognised as legitimate, while the other becomes a stranger to the children.

Even when countries recognise some gay rights (as in the Fernando and Nigel case), they may not apply to other European citizens who engaged in a slightly different union elsewhere. Recognition is at the moment managed by bilateral agreements between member states. What we are asking is that there should be just one principle of automatic mutual recognition of all same-sex unions rather than 351 bilateral agreements between member states (I had to ask a mathematician friend of mine. In case anyone is interested, you get this number with the following operation (26*27) /2).

In 2009, the Swedish presidency of the European Council tried to push forward proposals which included the recognition across EU countries of all forms of marriages and civil unions. However, what came to be called the Stockholm Programme was amended and ratified without the inclusion of this “controversial” element. The European Parliament has expressed itself in favour of mutual recognition several times, in particular in the Freedom of Movement directive 2004/38. Vivianne Reading, the EU commissioner responsible for Justice and Citizenship, has publicly declared that lack of mutual recognition is a violation of fundamental rights (this is, however, the same person who was outraged when Sarkozy deported European Roma citizens back to Romania but did nothing about it).

Many (not only conservative bigots) ask me and those involved in this struggle: why would you care about something so technical and so marginal, when the future of millions of people, gay and straight alike, is in peril by the biggest economic, financial and political crisis Europe has faced in decades? There are two ways I usually answer to this. The first is that human rights remain important despite macro-economic or political contingencies. Would you have told African-Americans to forget about their civil rights in the early 60s, as the Cuban Missile Crisis would potentially be more critical for everyone, white and black alike?

The second way to answer is with a reflection about Europe. Mutual recognition is in many ways intimately interconnected with the crisis Europe is facing at the moment. It is an issue created by the European Union’s uneven integration process, which made economic capital enjoy more freedom of movement than European citizens enjoy. This situation is created by half-hearted reforms, which give citizens economic migration rights which are not always or fully exercisable because of lack of integration in other areas. The irony is that this quagmire could be solved by the European institutions themselves. Rather than limiting themselves to issuing Directives that keep being ignored by some countries, they could show the same tough attitude that they show when countries do not comply to economic and financial agreements.

Poland and Italy, the biggest member-states without gay rights, where the issue of lack of mutual recognition causes problems to thousands of EU citizens, have for years rejected every proposed law that would make life better for LGBT citizens, including anti-homophobia measures. Their Catholic macho attitude however, instantly disappeared when the EU required all member states to implement the Employment Equality Directive which sanctioned discrimination in the workplace on a series of grounds including sexual orientation. When faced with paying huge fines if they did not implement it, both parliaments and governments bowed to the fear of financial measures and implemented the directive.

If only the EU flexed its muscle using the principle of mutual recognition (and a thousand other social, civil, labour and environmental issues), many citizens would recognise the democratic and moral authority of the European project beyond determining the length of bananas or imposing fiscal austerity on its members.

We shouldn’t forget that all three branches of the EU (Parliament, Commission and Council) are dominated by centre-right forces, largely responsible for the economic crisis and for lax controls on finance. They are also those who long opposed same-sex rights in their parliaments when laws were voted in by left-of-centre parties. The same happened with voting rights to women, with migrants’ rights and even for the abolition of slavery. Right-wing parties always seem to oppose extensions of rights and to then feel sorry about their conservatism years later. So, the current legal complications of LGBT lives in Europe due to the lack of a principle of mutual recognition may be an inherent problem of how the EU functions. It is also however, a political problem due to conservative forces managing our continent and our countries.

For the EU to change into a force that guarantees rights as well as economic stability, we need a new progressive majority to emerge and to shape the EU into a protector of civil and political rights and not only into an austerity whip. As before, we can expect right wing voices to eventually see the wisdom of the changes. About the economy as well as about gay rights.

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