Gay Rights

Speech by Jean Lambert MEP, Green Party, London

To the East London Out Project (ELOP) and Newham Anti-Homophobic Partnership (NAHP)
campaign launch to highlight homophobic discrimination and crime within the London Borough of Newham.

24th July 2003

Firstly, I would like to thank you for giving me the opportunity to be here at this important event. It is evidence of the increasing assertion of the power and presence of the lesbian and gay movement in London and a very positive evolution towards genuine equality of treatment.

What we are experiencing now is a significant cultural shift. This has been accompanied by a significant progress in the legal recognition of equality. I am here tonight to speak about the European dimension of that change.

Claudia Roth, an elected Green in Germany, wrote a groundbreaking report in the 1990s which would change the face of European legislation in the realm of equality based upon sexual orientation. Claudia is now the head of the Human Rights Convention in Germany. We first saw significant changes in the 1999 Treaty of Amsterdam's Article 13 - a clause dedicated to committing the EU to a package of anti-discrimination legislation. For the first time, Governments were enabling the regional bodies of the European Commission, Council and Parliament to set cross-border standards to tackle discrimination. This meant discrimination in all forms: not just on the grounds of gender, but also on religion, race/ethnic origin, disability, age and sexual orientation.

This enable those who were, at the time, in negotiations with the new Accession Countries to insist on the repeal of punitive laws concerning sexual orientation. As we approach the year of accession, these issues are still causing problems for the negotiators and there is no doubt that cultural attitudes are embedded in national legislation. However, this is now a legally binding requirement so a solution will have to be found.

Yet, since 1999, it has not been plain sailing. For example, we have had to battle to maintain the commitment to anti-discrimination in the objectives of the new EU Constitution, the draft of which is currently being discussed by the Member State Governments. We have managed to ensure that the following text is being considered:

Excerpt from the draft EU Constitution (July 2003)

Article 2: The Union's values

The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights. These values are common to the Member States in a society of pluralism, tolerance, justice, solidarity and non-discrimination.

Article 3: The Union's objectives

3. The Union shall… combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of children's rights.

But is this far reaching enough?

The European Parliament's Equalities Coalition consists of a series of inter-groups made up of members from across the political divide. It includes the inter-groups on aging, disability, race, and lesbian and gays. I am an active member of all of these groups. We lobbied the European Convention to give a stronger commitment to equality in the text of the Constitution, but we failed. However, the text has yet to be passed by the Member State Governments, so we will continue to impress upon the decision-makers the importance of this clarity.

Why is the text of the Constitution so important?

Well, it sets the legal base for future action. Although the Charter of Fundamental Rights has strong commitment to anti-discrimination, it would help if this were also part of the main document. The British Government has been most ambivalent on this issue.

Under the auspices of Article 13 of the Treaty of Amsterdam, the EU has recently passed a series of Directives on employment and anti-discrimination on the grounds of age, disability, religious beliefs and sexual orientation. This joins two earlier Directives on gender and race/ethnicity. These are currently passing into UK law (the deadline for implementation is August 2005).

The Directive on sexual orientation insists on equal treatment in employment and training and puts the burden of proof with the employer to show how employment practices do not breach the principle of equal treatment. Harassment is also deemed to be a form of discrimination.

Council Directive 2000/78/EC of 27 November 2000
Establishing a general framework for equal treatment in employment and occupation

Article 2: Concept of discrimination

1. For the purposes of this Directive, the "principle of equal treatment" shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.
2. For the purposes of paragraph 1:
(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;
(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:
(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or
(ii) as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.
3. Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.
4. An instruction to discriminate against persons on any of the grounds referred to in Article 1 shall be deemed to be discrimination within the meaning of paragraph 1.
5. This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.

Article 3: Scope

1. Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:
(a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;
(b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;
(c) employment and working conditions, including dismissals and pay;
(d) membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations.
2. This Directive does not cover differences of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons in the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.
3. This Directive does not apply to payments of any kind made by state schemes or similar, including state social security or social protection schemes.

When this piece of legislation was being drafted, the Green/EFA Group and the Socialists were concerned to ensure that religious considerations did not over-ride sexual orientation. Although we recognise the need for a religious qualification in order to be an Imam or Monarch of England, we don't believe this applies to people driving school mini-buses! However, I should note by sincere regret at the lack of courage shown in the recent case of the should-be Bishop John of Reading.

Our Government is in the process of implementing the articles of the EU general framework into British law. Many of you will have heard the outcry over the summer regarding the publication of the draft Employment Equality (Sexual Orientation) Regulations. The proposed Article 7 on "Exception for genuine occupational requirement" on religious grounds falls very much on the side of the employer. I am concerned that the Government will be getting the wrong balance here. The draft effectively puts the onus upon an employee to defend his or her sexual orientation in a tribunal, rather than on the employer to defend their decision not to employ on the basis of sexual orientation.

I raised this concern with the European Commissioner in June, asking her opinion. I am awaiting her response. I am aware, though, that the Commission are taking these changes very seriously. They launched a campaign last week to help people understand their new rights (www.stop-discrimination.info).

We have other issues too on our agenda, not least the definition of "family" and the basis upon which EU nationals may move freely. My own report on the coordination of social security will try to tackle the issue of the recognition of partners rights when accessing certain social security provision should a partnership exercise the right to move.

There is progress in this area. In the Netherlands, marriage is open to same sex and opposite sex couples. Another 7 Member States recognise legalised partnerships and the UK is catching up. There is still much work to be done, however, not least on the perceptions held by people on the street. The fight against homophobia will continue into this new century and your campaign has my support and the support of the Greens - both here and in the European Parliament. I wish you success and a peaceful weekend. Back to the struggle!