Malta at the head of the Council of the European Union: a breath of fresh air for the rights of LGBTI persons

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Since the beginning of January 2017, the archipelago of Malta is chairing the Council of the European Union (EU) presidency for the next six months. Its priorities include the objective to go further on gender equality issues. More specifically, the Maltese presidency plans to organise a ministerial conference on LGBTIQ issues in order to further analyse the roadmap proposed by the European Commission in 2015.[1] It will be held on the 23^rd February 2017 in Malta. This agenda is not surprising coming from this country which is in the first place of European countries that most respects the rights of Lesbians, Gays, Bisexuals, Transsexuals, Intersexual and Queer people, according to the country classification of the European organisation ILGA-Europe, which fights for the equality of rights for LGBTIQ persons.[2]

Malta was the first country to ban the “sexual reorientation” therapy, at the end of 2016, which aims to change the person’s sexual orientation.[3] This follows the adoption in April 2016 of the Gender Identity, Gender Expression and Sex Characteristics Act, which guarantees rights of gender identity, physical integrity and physical autonomy for all people, and strengthens legal recognition of the gender of adults and minors based on self-recognition, which means only their word counts, testimonies of their close relations or medical examination is not compulsory anymore to make that change.[4]

Definitions of the terms:

“The acronym LGBTI describes a diverse group of persons who do not conform to conventional or traditional notions of male and female gender roles.”

L: “A lesbian is a woman whose enduring physical, romantic and/or emotional attraction is to other women.”

G: “Gay is often used to describe a man whose enduring physical, romantic and/or emotional attraction is to other men, although the term can be used to describe both gay men and lesbians.”

B: “Bisexual describes an individual who is physically, romantically and/or emotionally attracted to both men and women.”

T: “Transgender describes people whose gender identity and/or gender expression differs from the sex they were assigned at birth. The term intersex covers bodily variations in regard to culturally established standards of maleness and femaleness, including variations at the level of chromosomes, gonads and genitals.”[5]

Q: The American term “queer” means strange, sleazy, skew. Born in the 1990s, this activist school of thoughts (Queer Theory) questions categories of sexual identity: gender identities (woman and man) and sexual orientation (heterosexual or homosexual).[6] This is a general term which gathers the different non heterosexual identities. “Queer theory is challenging heteronormative social norms concerning gender and sexuality, and claims that gender roles are social constructions. Traditionally the term “queer” was an abusive term and therefore for some still has negative connotations. Many LGBTI persons however have reclaimed the term as a symbol of pride.”[7]

“Sexual orientation refers to each person’s capacity for emotional, affective and sexual attraction to, and intimate and sexual relations with, individuals of a different or the same gender or more than one gender.

Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth.”[8]

In other EU countries, the fight against LGBTI persons’ discriminations is far from being at an end – on a legal level and even less so in practice. According to a study regarding LGBTIQ persons, published by the European Union Agency for Fundamental Rights (FRA), one in two respondents has felt discriminated or harassed because of her/his sexual orientation in the last twelve months, one in four has been sexual or physically attacked or threatened with violence, and one in five has felt discriminated at work or when looking for a job. Another highlight that the FRA’s surveys notices: the difference of perception between heterosexual and homosexual couples in the public area. To the question asked, “How widespread is it that heterosexual partners holds hand in public?” and the same question for same-sex partners, the difference is huge. 93% answers “very widespread” or “fairly widespread” to the first situation, against only 18% for the second situation.[9] Discriminations against LGBTI are often based on heterosexual vision of the couple and family which is not only highlighted by several national public authorities as the only legitimate model, but often these authorities discriminate and stigmatise all other sexual orientation, well illustrated by Lithuania. Indeed, a law was adopted in 2013 and was used to censor different sexual orientations by arguing the will to “protect” children against “detrimental effects of public information”.[10] “A publicity video confronting stereotypes about love and family models, co-financed by the commission, was also targeted”, and could be shown just “after 11pm, together with alcohol and cigarettes ads”.[11] “A fairytale featuring a same-sex couple was banned for promoting “harmful, primitive and purposeful propaganda of homosexuality”.”[12] A recent example of institutional homophobia happened in France where posters for a health campaign targeting male homosexuals to prevent HIV transmission and showing two men hugging, was censored by several right elected representatives. They considered these posters as being “against moral standards and morality” and on the grounds of child protection. However, the French Health Minister has brought the case to justice against these municipalities.[13]

The great legal disparity between the Member States obviously affects LGBTI persons as well when they exercise a fundamental right related to European citizenship, namely free movement. Indeed, some Member States do not recognise the union for same-sex couples, recognised in others.[14] This could raise difficulties, for instance the right for exercising to family life, with the partner not being recognised as a family member.[15]

The reluctance of some Member States to go further in LGBTI persons’ rights is reflected at an EU level by the blockage in the Council of the adoption of the directive 2008/0140 (CNS) on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation.[16] This directive would affect the fields of social protection, social benefits, education, access and supply of goods and services. It would complement the already existing EU directives, namely the Employment Directive 2000/78/EC which prohibits employment discrimination based on sexual orientation. Following this adoption, it has been prohibited since 2003 to be dismissed based on one’s sexual orientation throughout the EU.[17] In 2012, the directive 2012/23/EU protecting victims of crimes was adopted, and “victims of crime should be recognised and treated in a respectful, sensitive and professional manner without discrimination of any kind based on any ground such as […] gender, gender expression, gender identity, sexual orientation […]”[18]. Some Member States, especially Germany, are still strongly against the directive for equal treatment, invoking the principles of subsidiarity and proportionality.[19]

Given this stagnation and this sorry record for the rights of LGBTI persons in the EU, the European Commission revealed at the end of 2015 a list of actions in order to advance LGBTI equality.[20] This list concerns non-discrimination, education, employment, health, free movement, asylum, hate speech/hate crime, enlargement and foreign policy. However, both organisations fighting for LGBTIQ rights and the European Parliament Intergroup on LGBTIQ persons’ rights denounced the lack of ambition of this list, without any concrete actions to fight against discriminations, violence and stigmatisation.[21]

In this context, a breath of fresh air for LBGTI rights is more than necessary and AEDH welcomes the fact that the Maltese presidency is putting gender equality on its priorities map. AEDH considers that the Maltese presidency should imperatively focus its efforts trying to advance the directive on equal treatment. More generally, the success of the Maltese initiative for LGBTI rights will strongly depend on other Member States. With this aim in mind, this is an opportune moment to remind national authorities their international duties! – and their own guidelines to promote and to protect the enjoyment of all Human rights by Lesbian, Gay, Biseual, Transgender and Intersex (LGBTI) persons in June 2013: “LGBTI persons have the same rights as all other individuals – no new human rights are created for them and none should be denied to them.”[22]

[1] The Maltese priorities

[2] ILGA-Europe, Country Ranking, 2016

[3] Libération, Malte est devenu le premier pays européen à interdire les thérapies de «réorientation sexuelle», 11 December 2016

[4] ILGA-Europe, op.cit.

[5] Council of the EU, Guidelines to promote and protect the enjoyment of all Human rights by Lesbian, Gay, Biseual, Transgender and Intersex (LGBTI) persons, 24 June 2013

[6] Stéphane Lavignotte, Les Queer, politique d’un nouveau genre, Les panthères roses

[7] ILGA-Europe, Glossary

[8] Council of the EU, op.cit.

[9] FRA, Survey data explorer – LGBT Survey 2012 , 2012

[10] EuObserver, Commission ‘Shockingly Passive’ on LGBT* Rights in Lithuania, 7 December 2016

[11] Ibid.

[12] Ibid.