Handbook on European non-discrimination law – Contents
Sexual orientation can be understood to refer to “each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate relations with, individuals of a different gender or the same gender or more than one gender.”
Source: Yogyakarta Principles (2007), Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity, March 2007. An independent body of experts in International Human Rights Law adopted these principles.
Cases relating to sexual orientation dis- crimination typically involve individuals receiving less favourable treatment be- cause they are gay, lesbian or bisexual, but the ground also prohibits discrimina- tion on the basis of being heterosexual.
The following examples illustrate how the CJEU interprets the prohibition of discrimination on grounds of sexual orientation.
Example: In Asociaţia Accept v. Consiliul Naţional pentru Combaterea Discriminării, Accept, an NGO promoting and protecting LGBT rights in Romania, complained that the principle of equal treatment as specified in the Employment Equality Directive was breached in recruitment matters by a professional football club. They referred in particular to homophobic public statements made by a patron of this club, who stated in an interview that he would never hire a homosexual player. The CJEU stated that it would have been sufficient for the club to have distanced itself from discriminatory public statements and proved the existence of express provisions in its recruitment policy aimed at ensuring compliance with the principle of equal treatment.
Example: In Geoffrey Léger v. Ministre des Affaires sociales, de la Santé et des Droits des femmes and Etablissement français du sang, a man who had a sexual relationship with another man was not allowed to give blood. The national authorities considered that the claimant was exposed to a high risk of contracting severe infectious diseases that could be transmitted through the blood. The CJEU concluded that, although such a permanent ban from giving blood for homosexual men was compatible with EU law (Article 21 of the EU Charter), including its prohibition of discrimination, it was only the case when less onerous methods of ensuring a high level of health protection did not exist. The CJEU left it in the hands of the domestic courts to ascertain whether there were any effective techniques for detecting infectious diseases, in particular HIV. In the absence of such techniques, the courts would have to verify whether a questionnaire and individual interview with a medical professional could establish the existence of a risk to the health of recipients.
The methods of assessing the credibility of declared sexual orientation of asylum applicants have been a matter of CJEU case law.
Example: In A and Others v. Staatssecretaris van Veiligheid en Justitie v. Staatssecretaris van Veiligheid en Justitie, the CJEU clarified how national authorities, in accordance with EU standards, could ascertain the sexual orientation of asylum applicants. Directives 2004/83/EC and 2005/85/EC provide the minimum requirements that third-country nationals must fulfil to be able to claim refugee status; they provide the minimum standards for the procedures for examining asylum applications and the rights of asylum seekers. National authorities are not allowed to carry out detailed questioning about the sexual practices of asylum applicants or submit them to any ‘tests’ to establish their homosexuality, because such evidence would of its nature infringe human dignity, the respect of which is guaranteed by the EU Charter of Fundamental Rights. Moreover, the CJEU held that not declaring one’s homosexuality at the beginning of an asylum procedure before the relevant authorities must not lead to the conclusion that the individual’s declaration lacked credibility.
Example: In X, Y, and Z v. Minister voor Imigratie en Asiel, the CJEU found that homosexual persons can constitute a particular social group under the refugee definition because of existing criminal laws specifically targeting them. The right to asylum can be justified when the person risks persecution. A penalty of imprisonment for homosexual acts will be considered as a sufficient serious risk of persecution if this penalty is actually applied. The sexual orientation is a characteristic so fundamental for a person’s identity that nobody should be forced to renounce it or conceal it in the country of origin to avoid persecution.
Under the ECHR, Article 14 does not explicitly list ‘sexual orientation’ as a protected ground. In a series of cases, the ECtHR has stated, however, that sexual orientation is included among the ‘other’ grounds protected by Article 14.
Example: In S.L. v. Austria, the applicant complained that national law, as it stood at the time, criminalised consensual sexual relations between men where one of the parties was under eighteen. The contested provision did not apply to opposite-sex or female same-sex sexual relationships. The ECtHR found this to constitute discrimination based on sexual orientation.
The Austrian Parliament subsequently repealed the criminal provision – the subject matter of the above case. But the criminal convictions based on the repealed provision were not deleted from the criminal records of those people who had been convicted.
Example: In E.B. and Others v. Austria, the applicants complained about the Austrian authorities’ refusal to erase the criminal convictions for consensual homosexual relations from their criminal records, although the offence in question had been abolished. The ECtHR noted that a legal provision losing its force of law was not in itself a sufficient reason for deleting a conviction from a person’s criminal record. However, both the Austrian Constitutional Court and the ECtHR had found that the contested provision violated the Austrian Constitution and the ECHR, respectively. Both held that the provision had been abolished to bring the situation into conformity with the law and the principle of equality, and that maintaining criminal record entries may have a serious negative impact on the private life of the individual concerned. Since the national authorities had failed to provide any justification as to why it was necessary to maintain the criminal record entries, the ECtHR found a violation of Article 14 taken in conjunction with Article 8 of the ECHR.
The ECtHR also examined a number of cases involving discrimination based on sexual orientation in the context of adoption and marriage.
Example: In E.B. v. France,  the applicant was refused adoption of a child because there was no male role model in her household. Given that national law permitted single parents to adopt children, the ECtHR found that the authorities’ decision was primarily based on the fact that the applicant had been in a relationship and living with another women. Accordingly, the ECtHR found that discrimination had occurred based on sexual orientation.
Example: In Taddeucci and McCall v. Italy, the applicants, an Italian national and a New Zealand national, had lived together as a homosexual couple since 1999. When they decided to settle in Italy, the second applicant’s application for a residence permit on family grounds was turned down, because the applicants were not married and therefore the Italian national’s partner was not considered a family member. At the same time, only heterosexual couples could get married. Consequently, the condition of getting married could not be fulfilled in the applicants’ case. The ECtHR found that the lack of a right to marry for same-sex couples under national law, which was a prerequisite for obtaining a residence permit, constituted a violation of Article 14 in combination with Article 8 of the ECHR.
The ECHR also protects from government interference relating to sexual orientation under Article 8 taken alone. Thus, even if discriminatory treatment based on this ground has occurred, it may be possible simply to claim a violation of Article 8 without needing to argue the existence of discriminatory treatment.
Example: In Karner v. Austria, the applicant had been cohabiting with his partner, the main tenant, who died. The national courts interpreted the relevant legislation so as to exclude homosexual couples from automatically succeeding to a tenancy agreement where the main tenant died. The government argued that differential treatment was justified to protect those in traditional families from losing their accommodation. The ECtHR stressed that, although protecting the traditional family could constitute a legitimate aim, “the margin of appreciation […] is narrow […] where there is a difference in treatment based on sex or sexual orientation”. The ECtHR continued that “the principle of proportionality does not merely require that the measure chosen is in principle suited for realising the aim sought. It must also be shown that it was necessary in order to achieve that aim to exclude certain categories of people – in this instance persons living in a homosexual relationship – from the scope of application of section 14 of the Rent Act”. The ECtHR thus made a finding of discrimination, since the state could have employed measures to protect the traditional family without placing homosexual couples at such a disadvantage.
Example: In Schalk and Kopf v. Austria, the applicants, a same-sex couple, requested from the competent authority permission to get married. Their request was refused, because under domestic law a marriage could only be concluded between persons of the opposite sex. The legislation was subsequently changed, and the mechanism to recognise and give legal effect to same-sex couples was established in the form of a registered partnership. The ECtHR held, for the first time, that a cohabiting same-sex couple living in a stable relationship constituted ‘family life’, but that their inability to marry did not constitute a violation of Article 14 in conjunction with Article 8 of the ECHR. The Court pointed out that the national authorities were better placed to assess and respond to the needs of the society in the field and to take account of social and cultural connotations. Article 12 of the ECHR did not impose an obligation to establish a right to marry for same sex couples and consequently there was no violation of that provision.
Article 5 of the ECHR protects the right to liberty of persons irrespective of their sexual orientation. Interferences with this right are examined under Article 5.
Example: In O.M. v. Hungary, the applicant, an Iranian national, claimed asylum on the basis of his homosexuality. The authorities ordered his detention, in particular because he was unable to prove his identity or right to stay in the country. The ECtHR found that the authorities had failed to carry out an assessment in a sufficiently individualised manner as required by national law. When placing asylum seekers who claimed to be part of a vulnerable group in the country that they had to leave, the authorities should exercise particular care to avoid situations which could reproduce the plight that forced them to flee. The authorities had failed to consider, when ordering the applicant’s detention, the extent to which he was safe in custody among other detained persons, many of whom had come from countries with widespread cultural or religious prejudice against such persons. In conclusion, the ECtHR held that there had been a violation of Article 5 (1) of the ECHR.
The ESC also protects sexual orientation among ‘other’ grounds.
Example: The case of Interights v. Croatia concerns the use of homophobic language in school materials. The ECSR stated that, although states enjoy a wide margin of discretion in determining the content of national school curricula, they have an obligation to ensure through the domestic legal system that state-approved sexual and reproductive health education was objective and non-discriminatory. The Committee found that the educational material used in the ordinary curriculum described and presented people of homosexual orientation in a manifestly biased, discriminatory and demeaning way. It held that the discriminatory statements constituted a violation of the right to health education (Article 11 (2) of the ESC) in light of the non- discrimination clause.
485. CJEU, C-81/12, Asociaţia Accept v. Consiliul Naţional pentru Combaterea Discriminării, 25 April 2013.
486. CJEU, C-528/13, Geoffrey Léger v. Ministre des Affaires sociales, de la Santé et des Droits des femmes and Etablissement français du sang, 29 April 2015.
487. For more information, see FRA (2017), Current migration situation in the EU: Lesbian, gay, bisexual, transgender and intersex asylum seekers, Luxembourg, Publications Office.
488. CJEU, Joined cases C-148/13 to C-150/13, A and Others v. Staatssecretaris van Veiligheid en Justitie [GC], 2 December 2014.
489. CJEU, Joined cases C-199/12 to C-201/12, Minister voor Immigratie en Asiel v. X and Y and Z v. Minister voor Immigratie en Asiel, 7 November 2013.
490. For other case law relating to sexual orientation see in particular CJEU, C-267/06, Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen [GC], 1 April 2008, discussed in detail in Section 2.2.3 and CJEU, C-267/12, Frédéric Hay v. Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres, 12 December 2013, discussed in Section 2.1.2.
491. See, for example, ECtHR, Fretté v. France, No. 36515/97, 26 February 2002, para. 32.
492. ECtHR, S.L. v. Austria, No. 45330/99, 9 January 2003.
493. ECtHR, E.B. and Others v. Austria, Nos. 31913/07, 38357/07, 48098/07, 48777/07 and 48779/07, 7 November 2013.
494. ECtHR, E.B. v. France [GC], No. 43546/02, 22 January 2008.
495. ECtHR, Taddeucci and McCall v. Italy, No. 51362/09, 30 June 2016.
496. ECtHR, Karner v. Austria, No. 40016/98, 24 July 2003, paras. 34-43.
497. ECtHR, Schalk and Kopf v. Austria, No. 30141/04, 24 June 2010.
498. ECtHR, O.M. v. Hungary, No. 9912/15, 5 July 2016.
499. ECSR, International Centre for the Legal Protection of Human Rights (Interights) v. Croatia, Complaint No. 45/2007, 30 March 2009.
5.3. Sexual orientation