Europe is generally seen as a leader in LGBTQ+ rights. After all, more than half of the countries that have legalised same-sex marriage are located in Europe with the Netherlands being the first country in the world to do so in 2001. However, countries in Eastern Europe are lagging behind their Western counterparts.
We often read in the news about hate crimes against the LGBTQ+ community in those countries and that is only part of the hostility that our community experiences there on a daily basis.
Article 21 of the Charter of Fundamental Rights of the European Union includes an anti-discrimination provision that states that "any discrimination based on any ground such as [...] sexual orientation shall be prohibited"; This is easier said than done.
Although all EU countries have anti- discrimination laws in place, 4 EU countries (Bulgaria, Italy, Poland, and Latvia) lack laws against LGBTQ+ hate crimes. Same-sex couples have zero legal recognition in 4 EU states (Bulgaria, Latvia, Lithuania, Romania) with another 2 countries (Poland and Slovakia) offering very limited recognition.
The EU institutions have consistently reaffirmed that it is a Member State's prerogative to decide whether or not to extend same-sex marriage and LGBTQ+ adoption rights to its own citizens as family law is the competence of EU countries.
However, the EU can intervene when fundamental Union rights are affected or if there are cross-border implications. One such case that reached the European Court of Justice (ECJ) is Coman v Romania. The case concerns a Romanian national and his American husband who married in Belgium. However, when they tried to move to Romania, the American husband was not granted a residence permit even though EU laws guarantee free movement in all EU countries of family members of EU citizens. This practically meant that the couple could not live in EU countries that do not recognise same-sex relationships which is a restriction of fundamental Union rights. Fortunately, the case reached the ECJ which ruled that “...in the directive on the exercise of freedom of movement the term ‘spouse’, which refers to a person joined to another person by the bonds of marriage, is gender-neutral and may therefore cover the same-sex spouse of an EU citizen...”.
This was hailed as a landmark ECJ decision on human rights but in practice, it still has not been implemented in Romania even though Bulgaria, Latvia and Lithuania did implement it.
Another ECJ decision concerns the right of children of same-sex couples. The specific case concerns Sara, who was born in Spain in 2019 and has two mothers: a Bulgarian and a British Gibraltar-born one. Spanish and British citizenship laws did not allow for Sara to be granted either Spanish or UK citizenship, therefore the couple requested a Bulgarian one. The case came before the highest EU court after Bulgarian authorities refused to give a birth certificate to the newborn girl - on the basis that a child cannot have two mothers.
The child was at risk of being stateless, with no access to citizenship or personal legal documents, unable to leave her family's country of residence, or receive education, healthcare and social security.
The ECJ ruled that Spain had already established the child-parent relationship through a birth certificate and Bulgaria should issue a passport based on that
"The member states must recognise that parent-child relationship in order to enable [Sara] to exercise, with each of her parents, her right of free movement. [...] both parents must have a document which enables them to travel with that child" the court said. Bulgaria is, however, set to appeal the decision.
Even though Eastern European countries are behind on LGBTQ+ rights there is definitely hope. Just a few decades ago even the idea of legal same-sex marriages was unthinkable and look where we are right now! The change might be slow but it is inevitable.
Published Online: 26/02/2023