Preliminary Draft Report. 17 juli 1993 On Equal Treatment of Lesbians and Gay Men in the EC. by Mrs Claudia Roth on behalf of the Committee on Civil Liberties and Internal Affairs. EXPLANATORY NOTES. 1. Summary of existing policies of the European Parliament and the European Commission in the field of equal treatment of Gay men and Lesbian Women. The Parliament's record on Gay and Lesbian Rights. In March 13th 1984 the European Parliament discussed the Report on Sexual Discrimination at the Working Place and adopted a Resolution based on this Report, prepared by Mrs. Squarcialupi on behalf of the Committee on Social Affairs of the EP.(EP 1-1356/83, PE 87.477) It's recommendations concentrated on the existing unequal treatment of Gay men and Lesbians in the working place and asked for proper action by the Commission and the Council to combat these shortcomings in the Community laws and regula- tions. After this first intervention of an EC institution in favour of Gay and Lesbian rights, the Parliament expressed on several occasions its wishes to ameliorate the position of Gay men and Lesbian women and to promote equal treatment irrespective of sexual orientation: -in its Resolution on Aids in 1990 it underlined the necessity of integrating the equal treatment of Gay men into the Aids prevention and other Aids policies on a Community level. -in the Resolution on the Recommendation on the Code of Practice on measures to Combat Sexual Harassment in the work place, it endorsed the Commission proposals to pay extra attention to sexual harassment towards Gay men and Lesbians. - In the Resolution on the Rights of the Child based on a Report of MEP Bandres Molet, the discrimination of children on the basis of sexual orientation is specifically outruled.(A-30172/92) - on various occasions written questions to the Commis- sion have been raised by Members from different political groups. The European Parliament The European Commission's record on Gay and Lesbian Rights. Over the last two years the European Commission through it's Commissioner for Social Affairs has dealt with the subject at the request of the International Lesbian an Gay Association (ILGA), an international non-governmental organisation with more then 400 member organisations in over 50 countries in the world, 10 of which are Member States of the European Commun- ity.(ILGA got an observer status at UN's ECOSOC in january 1993) -In 1991 the Commission issued a contract to the European Human Rights Foundation, for a research project by the European University Institute of Florence, Italy, and the University of Utrecht, Department of Gay and Lesbian Studies, The Netherlands, to analyze the impact of the single market legislation on Gay men and Lesbian Women. -An in-depth 300 page study entitled 'Homosexuality, A Community Issue.' edited by Andrew Clapham, European University Institute, Firenze and Kees Waaldijk, Univer- sity of Utrecht on the subject was finalized in the Autumn of 1992; -In 1991 the Commissioner for Social Affairs designated a civil servant in DG V to liaise with Gay and Lesbian organisations on an international level as well as on the level of the member states; -In 1989 and 1991 under the Erasmus scheme, Summer courses have been organized in lesbian and gay studies by five European Universities; -In 1990 a grant of 40.000 ecu was given to the Danish national Gay and Lesbian association, LBL, to carry out a study into the visibility of Lesbians in the Community. The Council has only once taken a decision on the issue when on 19 december 1991 the Council supported the Recommendation on the Code of Practice on Measures to Combat Sexual Harass- ment. These facts show that over the last decade the Community institutions have dealt with the problems of Gay men and Lesbians, albeit on a rather irregular basis and without an explicit legal basis in Community law. Other International developments. The World Health Organisation decided to remove homosexuality from the international classification of diseases. As from January, 1st 1993 this decision will be implemented. In 1991 Amnesty International decided to consider the complete prohibition under criminal law of sexual acts between persons of the same sex as against human rights and indicated that it considered persons convicted under such laws as entitled to its support. Recently Amnesty International adopted the case of two Rumanian men imprisoned for homosexual acts. In various international fora the equal treatment of Gay men and Lesbians has been raised by governments and NGO's. In the United Nation's ECOSOC, CSCE, the Council of Europe various steps have been taken that are likely to result in positive developments in the achievement of equality of treatment of Gay men and Lesbians and ending discrimination on the basis of sexual orientation. The Parliamentary Assembly of the Council of Europe is dealing with a proposal to introduce the abolishment of legal prohib- ition as a condition-sine-qua-non for membership of the Coun- cil of Europe. 2. The Legal and Social situation of Lesbians and Gays in the EC and in the member states. The legal and social situation of Gay men and Lesbians, in the various member states is still marked by great differences. As far as the legal situation is concerned various member states have provisions in their penal codes that completely forbid sexual acts between individuals of the same sex (as until June 1993 has been the case in the Republic of Ireland), or have discriminatory distinctions in the legislation on sexual behaviour and the age of consent. (e.g. the United Kingdom, the 'old countries' of FRG.) The European Court of Human Rights in Strasburg ruled in two cases that a full prohibition of sexual acts between individuals of the same sex is not allowed under the European Convention of Human Rights. In 1981 it so ruled in respect of Northern Ireland (Dudgeon case) and in 1988 it did so in respect of the Republic of Ireland in the Norris case, and in 1993 against Cyprus (Modinos Case). . In 1982 the law was changed in Northern Ireland so as to bring the United Kingdom into conformity with the Euro- pean Convention of Human Rights.In the Irish Republic it took until 1993 before the Dial voted in favour of a law to abolish the penalisation of homosexual acts between men. In 1988 in the United Kingdom legislation has been introduced to forbid the provision of material by local authorities,that is likely to promote homosexuality, in education, libraries and cultural events. Other Member States (Italy,1984,Republic of Ireland 1990, Belgium 1985) took comparative measures to prevent young persons receiving 'positive' information about homosexuality. In several member states legislation in the field of so-called embarrassing public behaviour or the prevention of sexual transmitted diseases (e.g. Greece) permits the prosecution of Gay men and Lesbians for acts that generally are considered to be regular gay and lesbian behaviour and would not be prosecuted if such acts were carried out by heterosexuals. In France measures against dating arrangements and contact advertisements by means of computer communication through minitel, lead to financial problems for gay organisations and editors, who financed magazines through means obtained by such services Over the recent years many persons in various member states have been persecuted and sentenced, under legislation that in criminalizes sexual acts between individuals of the same sex In many cases prosecution leads to degrading treatment in the public opinion and the media, before and during trials, and after convictions, to discriminating treatment by prison authorities and to often violent treatment by fellow-inmates in prisons. Even if arrests are not followed by prosecution, in some of the member states so-called gay and lesbian lists are made up and - in breach with data-protection regulations- circulated among authorities. But it are not mainly the provisions of the penal codes and criminal laws, in some of the member states, that are detri- ment to Gay men and Lesbians. Most of the homophobic treatment and the discrimination occurs in the daily lives of Gay men and Lesbians. Gay and Lesbian Visibility. The gay and lesbian visibility has grown in most member states, especially in urban areas. This visibility and strong and vigilant gay and lesbian com- munities in many member states, contributed to both changes in public opinion and to legal improvements. Such legal improvements have not been restricted to national regulations: in various member states initiatives have been introduced by regional and local authorities in support of gay men and lesbian woman and their organisations. Such is the case in e.g. the cities Bologna, Barcelona, Berlin, Amsterdam, The Hague and region like Lower Saxony in the Federal Repub- lic. A second result of this visibility and its societal changes was that many individuals came out as gay men and lesbian women and could develop various forms of lifestyles and rela- tionships that are new to society. However social suppression, contemptuous approach, even viol- ent attacks rape and murder of persons with a different sexual orientation and corresponding lifestyles did not disappear in all the member states upto a same extent. Partially this is due to existing different cultures in rela- tionships in general and family life in particular. These new lifestyles and relationships are generally not compatible with existing forms of legislation and practices in family law and confining areas on the level of the member states. Equal treatment of these new forms of lifestyles - in relation to e.g. asylum and immigration laws, social security and social benefits, health care, education, employment, matri- mony, succession rights, adoption of children, protection of lease contracts, and other areas- is not an automatic thing. This is not only the case for lifestyles and relationships of persons with an orientation to individuals of the same sex, in the population in general major changes have taken place in these lifestyles. The incompatibilities in these areas cause need for the adap- tation of legislation and regulations that are the exclusive competence of the member states of the EC. In areas where EC regulations exist with an impact on relationships with spouses, partners and dependents such incompatibilities also cause needs for adaptations. Freedom of movement restricted. The phenomenon of incompatibility with the existing laws. is also known as a consequence of the great changes that occurred in the forms of relationships of people of heterosexual orien- tation. In some members states such did lead to changes in legislation, but in general same sex relationships continued to be treated differently. For several gay and lesbian organisations this has been the reason to demand a full equal treatment of gay and lesbian relationships in line with the classic matrimony. In Denmark and the Netherlands this has already lead to specific forms of registration of relationship of persons of the same sex. As stated in the motion for a resolution on the recogni- tion of civil unions for couples consisting of persons of the same sex (Bettini e.a.PE 158.360) also in France and Germany problems in this field have risen. Also the motion for a resolution on discrimination in relation to freedom of movement (Blak and Jensen, PE 161.465) calls upon European Parliament to take action to ensure freedom of movement and equality. Irrespective of the legal status of such new relationships in the member states, it is obvious that these important changes will have consequences for an important group of European citizens as far as the freedom of movement is concerned. A striking example of a restriction of the freedom of movement caused by differences between member states is the case of a male civil servant of the European Parliament of Belgian nationality who was transferred from Brussels to Paris. His male partner (third country resident) who had limited residential rights in Belgium did not obtain such rights at all in France. As a consequence of this, the relationship became under heavy strains and was ended. The European Community legal system implicitly is based on the view that the obvious legal form of the basic unit in society is the classical nuclear family composed of two legaly married adults with childred. A striking example of the injustices this implicit basis causes, is a rule in the Common Agricul- tural Policy where the transfer of milk quota is only per- mitted if such a transfer is made to 'legal spouses'. Strengthening of Legal Basis of Human Rights. As it became clear in the study of the European Commission, existing case law by the European Court of Justice over the last years has already touched upon problem areas in this field. The 'aquis communautaire' has not been adapted to the new developments in the lifestyles and relationships. The concept of family, constituting the basis of the community legislation in these areas, is not covering the reality in European society any more. Therefore action is needed to adapt commun- ity law to these changes. In comparable cases, the European Court of Justice already looked for possible juridical grounds to come to binding conclusions under Community Law by referring to provisions in the European Convention on Human Rights and it's case law as formulated by the European Commission on Human Rights and the European Court of Human Rights. The European Commission working programme for 1990 envisaged for the Community to become a party to the European Convention of Human Rights. This would give the Community influence over a broader interpretation of several of the Convention provi- sions related to sexual relationships and the concept of the family. DRAFT RESOLUTION. On the equal treatment of lesbians and gay men and the Fight against discrimination based on sexual orientation. The European Parliament, - Recalling its positions and resolutions on the equal treatment of lesbians and Gays in the Report on Sexual Discrimination on the working place of 1984 by Member of Parliament Squarcialupi and its resolution (PE....); - Recalling its condemnation of discrimination based on sexual orientation as expressed in its resolution on the fight against and the prevention of aids (PE....); - Recalling the Recommendation against Sexual Harassment at the work place and its provisions to protect gay men and lesbians in this respect(....); - Recalling the resolution on human rights in the Commun- ity (de Gucht nr) - Taking note of the report Homosexuality, A Community Issue -written at the request of the European Commission- on the consequences of the completion of the single market in 1992 for gay men and lesbians, of the European University Institute at Firenze and the University of Utrecht the Netherlands, finalized in 1992 notably of its conclusions; A. considering that the European Parliament repeatedly has expressed its support for the equal treatment of all its citizens, irrespective of their sexual orientation; B. considering that not all member states did abolish discriminating legislation against sexual acts between persons of the same sex; C. Considering that major changes in the public opinion of most of the member states have brought along a greater visibility of lesbians and gay men and consequently -parallel to comparable developments in the European national, regional and local societies in general- to a manifolded set of lifestyles and forms of relationships; D. Considering that in spite of a greater visibility however lesbians and gay men are still subjected in all spheres of social relations, often from early age, to ridicule, intimidation, discrimination and outright physical assault; E. Considering that the variation in lifestyles in many member states cause a need to adapt existing civil, criminal and administrative legislation, and that in various member states such adaptations are on their way or already have been implemented ; F. Considering that in every day life lesbians and gay men are exposed to discriminatory behaviour inside important non-governemental organisations and social institutions like churches and their depend- ent institutions and services, the educational sys- tem, and of governemental institutions like the army, the police and other and taking into account that in various member states considerable improve- ments have been made by national, regional and local authorities, starting awareness and information campaigns among the responsible cadres of these institutions in order to improve the situation of lesbians and gay men; G. Considering that the implementation by the member states of civil criminal and administrative legisla- tion in several areas where the EC has competence causes incompatibilities with the basic principles of the provisions of the Treaty of Rome and the Single Act, notably with the freedom of movement of persons as laid down in article 3 of the EEC Treaty; H. Considering that the European Community, in its activities and within its proper jurisdiction has its own responsibility with regards to an equal treatment irrespective of sexual orientation; I. Considering the need of a firm legal basis for the protection of human rights in the EC to be laid down in the EC treaties; General Remarks. 1. Reaffirms its conviction that all citizens should be treated equal irrespective of their sexual orienta- tion, 2. Is of the opinion that the European Community must implement the principle of equal treatment irrespec- tive of a person's sexual orientation in its exist- ing legislation and all its legislation in the future, 3. Is furthermore of the opinion that in general the protection of human rights in the treaties, that are the basis of the Community must be strengthened and call upon the Community institutions to prepare for the next round of institutional changes as foreseen for 1996, a european constitution with a strong emphasis on equal treatment irrespective of differ- ences in nationality, race, belief, sex, sexual orientation or any other difference, 4. Calls upon the European Council and the European Commission, as a first step to a strengthening of the legal basis for the human rights in the Commun- ity as envisaged in the 1990 Working Programma of the Commission and recently expressed in its resol- ution, to become a party to the European Convention on Human Rights, To Member States. 5. Calls upon the member states to put an end to all legislation that is criminalizing and discriminating against sexual acts between persons of the same sex, 6. Urges the member states to put an end to unequal treatment of persons with a preference of persons of the same sex, single or living together, in legisla- tion and regulations in the field of social security and social benefits, adoption laws, housing regula- tions or any other regulations that are relevant, 7. Specifically calls upon the Republic of Ireland to comply with the ruling of the European Court of Human Rights in the Norris case (1988) and to repeal any legislation that is interdicting sexual acts between persons of the same sex, 8. Specifically calls upon the United Kingdom and the Federal Republic of Germany to abolish any existing provisions in their penal codes, that are discrimi- nating on the basis of sexual orientation, 9. Calls upon its member states to create opportunities for information campaigns in its military and polices forces providing information aimed at break- ing down prejudices and preventing discrimination; To European Commission. 10. Urges the European Commission to combat homophobia and to secure the protection of fundamental human rights of lesbians and gay men by nominating a Com- missioner with the responsibility for this area in his or her portfolio, with corresponding responsi- bility within the Commission Administration and the Budget, 11. Urges the Commission to set up an ad-hoc Task Force composed of internal and external members to prepare a detailed plan and monitor its implementation, 12. Asks the Commission to include in the Task Force's terms of reference: - the preparation of a Community Declaration spelling out the commitment to combat discrimi- nation on the basis of sexual orientation, within the proper jurisdiction of the Commun- ity, - the revision of the current Statute for Staff to eradicate all forms of discrimination on the basis of sexual orientation in all aspects of the Work Place, in order to serve as a model employer in this respect for other Community institutions, the Administrations of member states and private enterprises, - the revision of existing and planned legisla- tion in all areas in the field of the internal market and social and labour policy areas including provisions against discrimination on the basis of sexual orientation, starting with the Equal Treatment Directives by extending the gender discrimination to discrimination based on sexual orientation, - the revision of the ways by which the Commis- sion may encourage member states and non-gov- ernmental organisations to combat discrimina- tion based on sexual orientation within their respective spheres of competence, in liaison with national and transnational organisations active in this field; - the setup of a strategy for further research and study into and monitoring of forms of dis- crimination based on sexual orientation in particular in the economic sphere and with a view to enhance awareness and where necessary taking action, 13. Asks it President to forward this resolution etc.