The EU: a contradictory LGBTQ+ advocate?
The horizontal Anti-Discrimination Directive: a case studyM.A. Thesis in European Studies (European Policy) Graduate School of Humanities
Universiteit van Amsterdam, 2018-2019 Student: Daniel Martín Brennan (12240303) Thesis supervisor: mw. Dr. H.L. Muehlenhoff 2nd supervisor: dhr. mr. dr. A.C. van Wageningen
2 Table of contents
1. Introduction ………. 4
2. Literature review ………. 8
2.1. Attitudes shaping EU LGBTQ+ legislation ……… 8
2.2. Evolution in legislation ……….. 10
2.3. Civil society and judicial activism ………. 13
2.4. EU Enlargement policy and LGBTQ+ rights ………. 15
2.5. Gaps in literature ………. 16
3. Theoretical framework ……… 18
3.1. Norm diffusion……… 18
3.2. Neoliberalism and queer theory ………. 21
4. Methodology ……… 26
5. Data analysis ……… 30
5.1. Neoliberal nature of EU anti-discrimination policy………. 30
5.2. Anti-Discrimination Directive is obsolete ……….. 34
5.3. Understanding the failure in implementation ………... 38
5.4. Soft-power measures: mechanisms of norm diffusion ………. 43
5.5. Final observations ………. 47 6. Conclusion ………. 49 7. Bibliography ……….. 52 8. Annexes ………. 62 8.1. Annex I ………. 62 8.2. Annex II ……… 74 8.3. Annex III ………... 88 8.4. Annex IV ………... 99 8.5. Annex V ……… 103 8.6. Annex VI ………... 105
3 List of abbreviations
ALDE: Alliance of Liberals and Democrats for Europe Party EC: European Communities
ECHR (or ‘ECtHR’): European Court of Human Rights ECJ (or ‘the Court’): European Courts of Justice
Equinet: European Network for Equality Bodies
ERASMUS: European Region Action Scheme for the Mobility of University Students EU: European Union
ILGA/ILGA-Europe: International Lesbian, Gay, Bisexual, Trans and Intersex Association
LGBT: Lesbian, gay, bisexual and trans
LGBTI: Lesbian, gay, bisexual, trans and intersex
LGBTQ+: Lesbian, gay, bisexual, trans and queer/questioning + other sexual and gender identities.
MEP: Member of the European Parliament NGO: Non-governmental organization TEU: Treaty on European Union
TFEU: Treaty on the Functioning of the European Union (the) Council: Council of the European Union
(the) Commission: European Commission (the) Parliament: European Parliament
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1. Introduction
According to the European Union (EU) Treaties, all individuals are entitled to enjoy the full range of human rights based on the values on which the Union was founded,
essentially those of “respect for human dignity, freedom, democracy, equality and the rule of law” (TEU Art. 2). However, due to the vulnerability of certain groups within the EU and their proneness to facing discrimination, specific action has been required to guarantee their enjoyment of these rights. This is the case, for instance, of LGBTQ+ citizens in the EU (European Commission 2019).
LGBTQ+ people are those who identify as (L)esbian, (G)ay, (B)isexual,
(T)ranssexual or (Q)uestioning/queer. The symbol ‘+’ is used here to include further identities within the wide spectrum of sexuality and gender. Many international institutions and organisations generally adopt either the LGBT (Human Rights Watch 2019) or LGBTI acronym (United Nations 2018; European Commission 2019; Amnesty International 2019; ILGA 2019) when referring to them, which arguably limits the wide array of sexual and gender identities within the community. Based on this, I shall include the more inclusive ‘Q’ and ‘+’ in my use of the acronym, and, therefore, from this point forward in this paper I shall use ‘LGBTQ+’ in reference to LGBTQ+ citizens in the EU.
The EU has often showed its support for the LGBTQ+ community through many public official resolutions, briefings and statements (European Commission 2004; European Parliament 2007, 2009; Council of the European Union 2013) and so have its key figures and representatives. For instance, on the topic of backing an EU-wide strategy plan to support LGBTQ+ rights, former European Parliament President Martin Schulz stated that “the EU cannot be a truly credible voice for LGBT rights in the world until we have made sure all member states are following the same policy roadmap” (Nielsen 2014). In the same line of argument, Guy Verhofstadt, former Belgian Prime Minister and current leader of the ALDE (Alliance of Liberals and Democrats for Europe Party) group in the European Parliament recently claimed that “The rights of LGBTI people are fundamental rights” (Twitter 2019).
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However, for a long period of time the EU did not have specific measures in place to protect LGBTQ+ citizens from discrimination. The first significant action taken at the EU level was to include the ‘principle of non-discrimination’ in the Treaty of
Amsterdam in 1997 as Art. 19 of the Treaty on the Functioning of the European Union (TFEU), which consequently became legally binding in all Member States. In the same line of argument, Article 21(1) of the EU Charter of Fundamental Rights, which became legally binding following the ratification of the Treaty of Lisbon in 2009, specifies that “any discrimination based on any ground such as sex, race, colour, ethnic or social origin (…) age or sexual orientation shall be prohibited” (Charter of Fundamental Rights of the European Union 2000). Following that, and specifically in terms of secondary legislation, the ‘Equality Framework Directive’ came into effect in 2000 (Council Directive 2000) and also became crucial as a means to combat discrimination on grounds of sexual orientation, amongst other grounds, yet only in the area of
employment. Since then, and to date, no EU legislation has been implemented that
guarantees the protection of LGBTQ+ citizens from discrimination citizens.
Admittedly, in recent years the EU has made increasing efforts to promote LGBTQ+ equality through other mechanisms, for instance through the LGBTI Intergroup in the European Parliament, which continuously raises debates on LGBTQ+ issues by monitoring the EU’s action on the matter and engaging with civil society (LGBTI Intergroup 2019). Additionally, the EUhas introduced ‘soft law’ measures to promote the protection of LGBTQ+ rights both within the Union and in line with its foreign policy, such as the Commission’s ‘Green paper on equality and non-discrimination in an enlarged European Union’ (European Commission 2004), the ‘EU Guidelines to
promote and protect the enjoyment of all human rights by lesbian, gay, bisexual, transgender and intersex (LGBTI) persons’ (Council of the European Union 2013), and the Commission’s‘List of Actions to advance LGBTI Equality’ (European Commission 2015).However, these measures are not legally binding and, as such, have limited practical effect.
In 2008, the Commission proposed the implementation of an ambitious horizontal ‘Anti-Discrimination Directive’, also referred to as ‘Equal Treatment Directive’, which would expand the scope of the Equality Framework Directive beyond the labour market, to social policy areas including education, healthcare and access to goods and services (Council Directive Proposal 2008). However, since its initial proposal and having
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received strong support by the Parliament, the negotiations to enforce the directive have been stalled in the Council of the European Union (‘the Council’), given that the
proposal requires a unanimous agreement by all 27 Member States and some, such as Germany, have continuously blocked to it over the years. The reasons given to justify the opposition are, amongst others, competence issues and cultural incompatibilities (European Parliament 2019). Thus, the failure in implementing the proposal has only exacerbated the ongoing legal gap in the protection of LGBTQ+ citizens from
discrimination.
Last 2018 marked the celebration of the 10th Anniversary of the proposed Anti-Discrimination Directive (ILGA Europe 2018). However, there is nothing to celebrate given that the proposal remains blocked in the Council and, therefore, the legal
protection of LGBTQ+ citizens from discrimination in the EU remains very limited and at a standstill.
Based on the increasing soft-law measures being implemented by the EU to promote LGBTQ+ rights and the concerning opposition to legislative advances that would prevent further discrimination of LGBTQ+ people, in this paper I aim to critically assess whether there is an contradiction or inconsistency between the EU’s self-proclaimed role as an advocate and promoter of LGBTQ+ rights and the lack of legislative progress made at an EU level to guarantee the full protection of LGBTQ+ citizens from facing discrimination. The proposed horizontal Anti-Discrimination Directive will be used as a case study to examine this, given its relevance in aiming to expand the Equality Framework Directive’ limited scope of protection from
discrimination to a broad range of social policy fields, which are fundamental areas in which LGBTQ+ people face discrimination on a daily basis and had remained neglected by legislation until then.
In order to address this, I will begin by reviewing the scholarly literature on LGBTQ+ rights in the EU. This will allow me to explore and gain a deeper
understanding of the topic as well as to critically assess whether there are certain gaps in the literature on my case-study. Having done that, the next chapter will cover the
theoretical foundations on which I this paper will be based, including the concept of norm diffusion on LGBTQ+ issues and insights from queer theory and literature that can account for the neo-liberal element of EU non-discrimination legislation. As a means to analyse the question of an inconsistency between the EU’s ‘activism’ on
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LGBTQ+ issues and its lack of legislation on the matter, through the proposed directive as a case-study, I will take an institutional approach by gathering data on the proposed directive through qualitative interviews with representatives from the key institutions and groups involved in the EU legislative procedure, and specifically with those experienced in LGBTQ+ issues. This data will be combined with relevant supporting official EU documents on the subject, mainly Commission proposals, Parliamentary resolutions and Council conclusions and progress reports, in order to ensure an optimal level of analysis. Following the analysis, I will conclude by providing some final thoughts that can potentially lead to future discussion on the matter.
Evidently, there will be certain limitations to this paper. Firstly, by relying on one specific piece of legislation as a case-study to discuss whether the EU is a contradictory or inconsistent LGBTQ+ advocate due to a lack of legislation, the capacity of analysis is rather limited in scope. Additionally, by taking an institutional approach, this paper will not cover the civil society perspective on the matter, despite acknowledging its
undoubted work and relevance in the promotion of LGBTQ+ rights in the EU. Lastly, given the qualitative nature of the methodology chosen to discuss this question and the specific individuals that were interviewed, this research cannot provide a faithful representation of the entire institutions’ stance on the proposed directive, but only a perspective. Nonetheless, whilst acknowledging the possible limitations in this research, by reducing my focus to a specific piece of legislation and with the selected
methodology I hope to obtain a deeper and more comprehensive level of analysis on the research question.
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2. Literature review
Scholarly research on the advancement of LGBTQ+ rights in Europe and on the EU’s role and action in the matter is a fairly recent occurrence, which can be explained, amongst other reasons, by a lack of LGBTQ+ visibility over time and the late introduction of EU legislative measures on LGBTQ+ issues. Despite the rather new field of research and its sensitive nature, it has received increasing academic interest from several different perspectives, as I will discuss in this chapter. The existing
literature roughly covers the following four topics: 1) determinants that shape policy on LGBTQ+ issues in the EU; 2) the evolution of legislation and policies on LGBTQ+ rights in the EU; 3) the contribution of civil society and judicial activism in the
advancement of LGBTQ+ rights and 4) EU Enlargement and Neighbourhood policy and the EU’s efforts in promoting LGBTQ+ rights. It must be noted that the division into four topics does not entail that these topics are not interrelated. Indeed, there is literature comprising overlapping topics; for instance, authors examining the role of civil society activism in Post-Yugoslav countries in the context of EU accession (Bilic 2016) and the diverse strategies implemented by different NGOs in both Western and Eastern Europe on LGBT issues (Holzacker 2012). However, for structural purposes and in order to ensure a clearer understanding of the literature that addresses LGBTQ+ issues in the EU, it is has been divided into the sections below.
2.1. Attitudes, dynamics and determinants that shape norms and legislation on LGBTQ+ issues.
The first section will focus on examining scholarly literature that addresses the factors and determinants that shape attitudes towards norms and legislation on LGBTQ+ issues. Several authors examine the role of socio-cultural factors that shape attitudes towards LGBTQ+ population at a national level in Europe (Hooghe et al. 2008; Hayes and Nagle 2015), whilst other authors, when examining the determinants that shape norms
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on LGBTQ+ issues, take both domestic and supranational contexts into account (Gerhards 2010; Fernández and Lutter 2013; Ayoub 2014; 2015).
On the one hand, the former set of authors focus mainly on the role of national identity, ethnicity and religion as determinants that shape attitudes and norms at a domestic level. For instance, Hayes and Nagle (2015) focus on the role of Catholicism and Protestantism and national identity in understanding attitudes towards gay and lesbian rights in in Northern Ireland. In a similar line of argument, Hooghe et al. (2008) examine the role of Islam and moral and familiar values in terms of attitudes towards LGBTQ+ population in Belgium.
On the other hand, the latter authors address the increasing influence of supranational norms regarding policymaking on LGBTQ+ issues beyond domestic determinants and cultural orientations (Fernández and Lutter 2014) and they especially examine the “importance of supranational cultural rules vis-à-vis domestic factors” (Fernández and Lutter 2014; Gerhards 2010; Ayoub 2014; 2015). Fernández and Lutter, along with Ayoub argue that besides domestic issues, international factors and norms, such as a state’s stronger embeddedness in the international order, are also fundamental in understanding how legislation on LGBTQ+ issues is shaped. Gerhards (2010) and Ayuob (2015) discuss this by examining the evolution of LGBTQ+ legislation in the EU. Both authors believe that in in order to understand attitudes towards legal
recognition of LGBTQ+ citizens in the EU, one must acknowledge the division between long-standing Member States 15) and those newly admitted ones into the EU (EU-12).1 Ayoub (2015) maintains that “domestic preconditions” of the EU-15 group, such as economic modernization, socio-political stability and a higher level of democracy, have allowed for an increased visibility and adoption of LGBTQ+ norms. On the
contrary, the newly admitted Member States, in which such norms have traditionally not been politicised, are more reliant on transnational and supranational resources to make these issues more visible.
Fernández and Lutter (2014) and Ayoub (2015) believe that norms on LGBTQ+ issues are spread in the Union through processes of diffusion. That is, based on world
1 Gerhards divides the EU-12 group into two sub-groups based on the year of their accession, either 2004
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society theory, Fernández and Lutter (2014) argue that “policies tend to spread more rapidly when they conform to general supranational values” (p.106).
Ayoub builds on this argument by stating that, indeed, for newly admitted states (EU-12), the transnational channels that tie these countries to the international system will facilitate the creation and diffusion of LGBTQ+ norms. More precisely, he argues that due to their presence in the international community, these countries will be encouraged and pressured to take action and implement progressive measures on LGBTQ+ rights; failure to do so may lead to further international pressure and retaliation (ibid, p.298). However, he specifies that for the long-standing (EU-15) group, it will be the aforementioned domestic preconditions that will allow for a higher likelihood and extent of diffusion on LGBTQ+ norms (Ayoub 2015, p.295).
In sum, Ayoub argues that countries within the Union are conditioned by different factors when it comes to legislating on LGBTQ+ issues, depending on when they entered the Union. Additionally, Fernández and Lutter and Ayoub establish that norms on LGBTQ+ issues will be spread across the Union in a different manner depending on the factors that condition Member States’ adoption to said norms. The theoretical value and relevance of norm diffusion in the process of shaping legislation on LGBTQ+ issues will be discussed in further detail in the next chapter, which will encompass the theoretical framework of this paper.
2.2. The evolution in EU legislation and policies on LGBTQ+ issues
This section will examine the literature on the development of EU legislation on
LGBTQ+ rights. Indeed, some authors have briefly addressed the evolution and growth of the EU’s implemented legislation and policies on the matter (Ayoub and Paternotte 2014; Slootmaeckers, Touquet and Vermeersch 2016). Mark Bell, however, provides an extensive, thorough and in-depth account of the policy and legislative development on LGBTQ+ issues in the EU’s institutional setting in several publications (Bell 2002; Bell and Kjellstrand 2004; Bell 2009; 2013).
Firstly, Bell introduces how discussion on LGBTQ+ issues originated in debates in the European Parliament as early 1984, in which a report addressed the situation of gays
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and lesbians in the European Communities (EC) at the time. As stated by rapporteur Vera Squarcialupi, the report ensued “very heated” debates in the Parliament, founded on “cultural and moral attitudes not easy to overcome” (Bell 2002 p.90). Bell argues that this already introduces a reoccurring challenge in the process of policymaking on LGBTQ+ rights at the EU level over the years: domestic cultural, religious and moral discrepancies.
These initial debates, nevertheless, resulted in increasing engagement at the EC level on gay and lesbian rights, the main factors of which were an increase in representation and influence of gay and lesbian rights through NGOs and other lobbying groups, the politicisation of the AIDS pandemic, which increased the visibility of, generally, gay men, and, lastly, increasing national legislation on discrimination on grounds of sexual orientation (Bell 2002, p. 92-93). This period of increasing engagement culminated with the inclusion of Art. 19 TFEU (ex Art.13 TEC) as the ‘principle of non-discrimination’ in the Treaty of Amsterdam in 1997, with the aim of preventing discrimination based on “sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation” (TFEU Art. 19); thus creating the EU’s first binding legal instrument on sexual orientation discrimination.
Bell recounts in further publications (Bell and Kjellstrand 2004; Bell 2013) that the EU’s further efforts in implementing legislation on LGBTQ+ issues were achieved with the implementation of secondary legislation on sexual orientation discrimination, in line with the enshrined principle of non-discrimination. The piece of legislation in question is the ‘(Employment) Equality Framework Directive’ (Council Directive 2000/78/EC), establishing a general framework for equal treatment in employment and occupation. Bell (2013) highlights the challenges raised in implementing this piece of legislation and on non-discrimination legislation in general, specifically on the issue of excessive EU competence and the principle of subsidiarity (p. 119), referred to by some authors as “an example of Community legislative excess” (Clapham and Weiler 1991). Some authors, such as Borrillo (2000), highlight that there has been an evident shift in EU policy on sexual orientation from a “declaratory phase” in the 1980s to the
implementation of binding secondary legislation (p. 264), and the Equality Framework Directive is a prime example of this. However, whilst this piece of legislation is indeed a fundamental step in the right direction towards LGBTQ+ equality, as Bell points out, the limited scope of protection from discrimination on grounds of sexual orientation
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only to the area of the labour market as well as the slow pace at which policy has been implemented on the matter reveal the market-driven foundation and character of European social policy and the weak position sexual orientation has within it (Bell 2002, Bell and Kjellstrand 2004). Other authors such as Muehlenhoff (2019) and Thiel (2015) also support this claim, with the latter arguing that legislation on LGBTQ+ rights has always been associated to neoliberal market-policies; that is, that anti-discrimination policy originated on market-related issues and as such, it has been limited to that area. Further discussion on the relationship between neoliberalism and legislation on LGBTQ+ rights in the EU will be discussed in the next chapter, which, as briefly referred to, will comprise the theoretical framework of this paper.
In terms of scholarly research on this paper’s case study, the 2008 proposal for an Anti-Discrimination Directive, which would expand the Employment Framework Directive’s scope from protection on grounds of sexual orientation to social policy fields, it remains very limited. Once again, Bell (2009) provides some early insights in response to the proposal shortly after it was announced. He states that the political will to expand the scope of the Employment Framework Directive came from incoming Commission President Mr Barroso in 2004, who stated that during his mandate he intended “to initiate work with a view to a framework directive on the basis of Article 13 of the European Community Treaty, which will replace the directives adopted in 2000 and extend them to all forms of discrimination”. (ibid, p.9). In consequence, based on Barroso’s drive and the pressures from the Parliament and civil society to follow up on his word, the horizontal directive was proposed by the Commission in 2008.
As a final point, Bell highlights that the proposal integrates a “multiple
discrimination” approach; that is, it enables protection from discrimination on more than one ground. Bell acknowledges that challenges can arise with a piece of legislation on multiple discrimination, given that current legal framework provides no appropriate comparator for complainant alleging discrimination on multiple grounds. In response to this, the Commission argues that “these issues go beyond the scope of this Directive, but nothing prevents Member States taking action in these areas” (Council Directive Proposal 2008, p.4). Nevertheless, he believes that “a directive dealing simultaneously with four grounds of discrimination seems entirely apt for addressing the question of multiple discrimination”. (Bell 2009, p.9) Contrary to this approach, other scholars such as Verloo argue that an assumed ‘one size fits all’ approach to addressing multiple
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discrimination is flawed, given that it is based on an “incorrect assumption of sameness or equivalence of the social categories connected to inequalities and of the mechanisms and processes that constitute them” (Verloo 2006, p. 223). Therefore, he calls for newer strategies that address differentiated inequalities, given that an “individualistic anti-discrimination policy is insufficient” (ibid, p. 224).
2.3. Civil society and judicial activism on LGBTQ+ rights
In contrast to the limited scholarly literature on the evolution of LGBTQ+ legislation from an institutional perspective, there has been growing scholarly work on the role of civil society in promotion LGBTQ+ rights in Europe, as well on judiciary activism in the interpretation of the existing legislation on the matter. For starters, authors such as Paternotte have extensively worked on understanding the long and established history of LGBTQ+ movements in Europe (Ayoub and Paternotte 2014; Paternotte 2016). Himself and Ayoub (2014) demonstrate that “the idea that Europe has a special relationship to LGBT rights first appeared in activists’ discourses, long before it was adopted and championed by European and national institutions” (p. 3). They argue that these movements associated, and still associate, LGBTQ+ rights with basic European ideas such as democratic values and basic human rights and they seek to accomplish their fulfilment through activism. Hence, they “recreate the idea that Europe is united around the LGBT issue” (ibid). The authors provide a brief historical overview of LGBT activism in Europe and maintain that the diversification of LGBTQ+ organisations continues to grow (ibid, p.9-11). They also highlight the crucial role of ILGA (the International Lesbian, Gay, Bisexual, Trans and Intersex Association) founded in 1978, and especially of its European branch ILGA-Europe, by arguing that they have been fundamental in improving the networks of activist groups across the continent and in globalising LGBT activism. Patternote builds on the importance of ILGA-Europe in another publication (2016) by exploring its transformation from a “fringe social movement into a key player in European equality politics” (p. 389).
There has also been further scholarly work on LGBTQ+ activism in the EU with a particular focus in Eastern Europe and the post-Yugoslav space (Bilic 2016), given the recent accession of some Member States from the region into the Union and the lack of
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national progressive legislation and policies on the matter. Some examples have been introduced above in the introduction to this chapter, such as Holzacker’s work in examining NGOs’ different strategies in Western and Eastern Europe regarding LGBTQ+ issues (2012). There is also literature on country-specific activism, such as research on the evolution and prevalence of LGBTQ+ activism in Poland. Whilst some authors have argued that said activism is traditionally a representation of merely middle-class gay and lesbian population (Szulc 2011), other authors suggest that it is becoming increasingly more representative and intersectional, and is gaining by engaging in transnational forms of activist cooperation (Binnie and Klesse 2012; 2013).
In terms of literature on judicial activism regarding LGBTQ+ rights, it focuses mostly on the positive role of the European Courts of Justice (ECJ or ‘the Court’) on the matter. De Waele and van der Vleuten (2011) argue that the ECJ has received
significant scholarly attention due to its unique way of “carving out its own domain and placing itself in a leading position vis-à-vis the courts and governments of the EU Member States” (p. 640). Some of its landmark cases include Van Gend en Loos (1963) and Costa v. ENEL (1964), which established the supremacy and direct effect of EU law above national law. In terms of its rulings on LGBTQ+ issues, De Waele and van der Vleuten state that ECJ rules in accordance with Art.19 TFEU, the principle of non-discrimination. However, the divergent situations in Member States on LGBTQ+ legislation and the Union’s limited competences complicate the Court’s action on the matter (De Waele and van der Vleuten 2011, p. 655). In terms of the outcome of the Court’s rulings on LGBTQ+ issues, the authors argue that the Court has, overall, acted as a promoter of LGBTQ+ rights, having ruled very positively especially on trans rights as well as on gay and lesbian rights, although to a lesser extent with the latter group. In his work, Keck also agrees that the ECJ has actively contributed to making progress on LGBTQ+ issues and argues against the perception that the Court often acts “too far and too fast” on LGBTQ+ issues (2009).
Besides the role of the ECJ on LGBTQ+ matters, some literature has also focused on the activism of other international courts. For instance, Helfer and Voeten (2014) argue that the European Court of Human Rights (ECHR or ECtHR) judgements “increase the likelihood that all European nations—even countries whose laws and policies the court has not explicitly found to violate the European Convention—will adopt pro-LGBT
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reforms” (p. 105) and are, therefore, also positive in terms of advancing LGBTQ+ rights.
2.4. EU LGBTQ+ action in Enlargement and Neigbourhood policies
Lastly, there has also been growing scholarly research that focuses on the EU’s action in promoting LGBTQ+ rights in its external polices, in which I include countries in pre-accession talks and some of those who have recently become Member States. Several authors have indeed addressed the role and perception of the EU as an advocate and ‘norm promoter’ on LGBTQ+ rights externally. As Slootmaeckers, Touquet and Vermeersch (2016) argue, “fundamental values have increasingly become the narrative driving EU foreign policy, including Enlargement and Neighbourhood policies” (p.22). They claim that this is the case by referring to Art. 49 TEU, which states that a
precondition to become a Member of the Union is to uphold the values laid out in Art. 2 TEU, which are those of “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights” (TEU Art. 2); values on which the Union was founded. Indeed, this narrative of upholding European norms and values and its
association with the acceptance of LGBTQ+ rights have played a role in the discourse between the EU and many countries who have recently entered the Union, such as Croatia in 2013, and those who remain in negotiations to access the Union, such as Serbia. In the case of the latter Balkan country, Bilic argues that whilst EU pressures during accession talks have had some positive effect, seen for instance with the return of the Belgrade Pride to the country, the over-reliance of symbolic norms and values might hinder future negotiations on discrimination legislation (Bilic 2016). In a similar line of argument, Vasilev argues that a crucial factor that is slowing down the process of LGBTQ+ recognition in Serbia is the country’s weak identification with European norms and values (2016).
Despite the widely accepted narrative of the EU’s role as a normative power in its foreign policy in relation to LGBTQ+ issues, some authors challenge this conception. More precisely, Mos argues that whilst the EU tries to shape international values and norms and create an external image of a champion for sexual minority rights, there are several discrepancies that dispute this (Mos 2013). Firstly, he maintains that there are
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inconsistencies between the Union’s external and internal policies on LGBTQ+ issues. The EU cannot address itself as an advocate for sexual minority rights when there are many cases of homophobia and other forms of sexual orientation discrimination within the Union (ibid, p.83-84). In addition to that, from an institutional dimension, he reveals that when comparing the positions taken by different EU legislative bodies on LGBTQ+ rights, these reveal inconsistencies between them, which reveal that institutional
arrangements makes it difficult for the Union to speak with one voice on the advancement of LGBTQ+ rights. Finally, he claims that there are conceptual
discrepancies when it comes to defining terms related to sexual orientation and gender identity. He argues that this “lack of definitional clarity” only “prepares the ground for arbitrariness and legal uncertainty” (ibid, p. 86). Some of these inconsistencies have also been voiced by other authors. For instance, when it comes to the EU’s external self-proclaimed image of advocate for LGBTQ+ rights, Slootmaeckers has argued through the analysis of the EU enlargement process in particular, that by portraying this image of beacon for LGBTQ+ rights, the EU contributes to processes of ‘othering’, by which it seeks to distance itself from and juxtapose to ‘other’ countries in terms of norms and values. (2016; 2019).
2.5. Gaps in literature
To sum up, this chapter has focused on examining the scholarly work on the
advancement in LGBTQ+ rights in the EU. Despite the fairly recent field of study, there is already extensive literature on the topic, which this chapter divided into several sections; those being, the study of norms and attitudes that shape legislation on
LGBTQ+ issues, the evolution of legislation on LGBTQ+ issues in the EU, the role of civil society and judicial activism on the topic and the EU’s external efforts in
promoting LGBTQ+ rights.
Whilst extensive research has been made in certain areas, this chapter has demonstrated that there has been limited scholarly attention on the content of anti-discrimination legislation on LGBTQ+ issues, specifically on the Anti-Discrimination Directive in the years after its proposal. Besides the issue of multiple discrimination raised by the directive, in over a decade since its proposal there has been a lack of
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scholarly literature engagement with its content. Scholars have also failed to address the factors involved in the failure of its implementation, as well as to question the
implications that the lack of implementation of such a crucial piece of legislation on LGBTQ+ issues has vis-à-vis the EU’s role as an LGBTQ+ advocate and a promoter of European norms and values. Based on this, this paper aims to fill this gap in the
literature by taking the proposed directive as a case study in order to examine whether the EU’s role as an LGBTQ+ advocate is coherent and consistent given the limited scope of legislation on LGBTQ+ issues.
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3. Theoretical framework
In this chapter I aim to cover the key theoretical concepts that will allow for an adequate analysis of this paper’s case study, the horizontal Anti-Discrimination Directive. The concepts discussed will be those of norm diffusion and how it shapes legislation on LGBTQ+ issues in the EU and queer theory and literature as a means to understand the EU’s neoliberal governance and its influence on anti-discrimination legislation, both briefly referred to in the previous chapter on the reviewed literature.
3.1. Norm diffusion and EU legislation on LGBTQ+ issues
When discussing the relevant literature on LGBTQ+ rights in the EU in the previous chapter, and specifically on the way in which EU norms on LGBTQ+ issues are conceived and shaped in order to create legislation, the concept of norm diffusion was referred to by some authors (Fernández and Lutter 2014; Ayoub 2015). So what is diffusionism and why is it important in the context of EU LGBTQ+ legislation and specifically on the horizontal Anti-Discrimination Directive? This section will focus on discussing the theoretical value of the concept for this paper.
Börzel and Risse (2009) define diffusion as a “process through which ideas are spread across time and space” (p.6). They argue that normative ideas are embedded in processes of policy creation and are vital in understanding actors and institutional identities as well as how they perceive one another. The EU is, according to them, a clear ground for processes and outcomes of diffusion, with the process of European integration as a prime example. Indeed, there is extensive literature on the matter supporting this claim (Manners 2002, 2006; Graham 2009; Slobodchikoff 2010; Ayoub 2015; Swimelar 2017), with some authors claiming that “norms (do) diffuse and
become institutionalized into formal and informal rules” (Swimelar 2017, p.915) and others referring to the EU as a “gigantic exercise in the diffusion of cultural and social (including legal, political and economic) forms” (Graham 2009, p.298).
In terms of the significance of norm diffusion in the context of LGBTQ+ rights, as introduced previously in this paper, LGBTQ+ issues have become increasingly politicised and the ideas and norms associated to them have gradually gained
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importance in EU policymaking, especially in the measures to combat sexual
orientation discrimination. As Graham points out, “it is a process of diffusionism that is at work in building the Union, and nowhere more so than in combating different forms of discrimination” (ibid, p.299). As a result of processes of diffusion, EU norms and ideas on LGBTQ+ issues have evolved over time, been transformed into policy,
incorporated into national and supranational legislation and eventually become rooted in the EU ‘s position and action on LGBTQ+ rights. Hence, for the purpose of this paper, it is of vital importance to understand how norm diffusion shapes LGBTQ+ anti-discrimination legislation, with the proposal for a horizontal Anti-Discrimination Directive in mind. I will rely on Ayoub’s scholarly work and theoretical approach on norm diffusion to examine this.
Ayoub (2015) discusses that norms on LGBTQ+ issues that shape legislation within the EU have been diffused essentially through three different mechanisms: 1) through advocacy groups with a transnational European platform, 2) by means of international socialisation or international pressure and 3) due to domestic context preconditions, such as economic modernisation and higher levels of democracy, which facilitate a state’s readiness to implement legislation on the matter (p. 297). He argues that existing theoretical explanations that seek to explain processes of diffusion “taken individually (…) are simplistic because they ignore the multiple dimensions of diffusion in a complex, multi-level and interactive environment” (ibid, p. 300). Based on this, he draws on the work of sociologists such as Strang (1990) and Soule (1997) to argue that processes of diffusion work in a two-stage process; firstly, internal processes of norm formation occur in certain states, which are then diffused and adopted at a supranational level by other states who seek external legitimacy. (ibid). Thus, he suggests that
processes of diffusion will work differently for Member States depending on the length of time that they have been a part of the EU.
As a result, Ayoub separates newly admitted Member States into the EU (EU-12) from the long-standing ones (EU-15), as already briefly discussed in this paper’s previous chapter. Ayoub claims that due to the brief time in which the EU-12 group have been part of the Union, processes of socialisation will take place for these
countries within the international system. That is, their stance on LGBTQ+ issues will be scrutinised, and certain expectations will be had in terms of their action on the advancement of LGBTQ+ rights. Failure to do so could result in international backlash,
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easily reflected in the media or other transnational channels of diffusion. In addition to that, he also argues that the embeddedness of domestic LGBTQ+ civil society groups into transnational European networks will also create greater opportunity for norms on LGBTQ+ issues to be diffused in newly admitted states. In contrast, he argues that the aforementioned domestic preconditions of economic modernisation and a certain level of democracy are better suited at accounting for norm diffusion in EU-12 Member States, given that their long-standing membership lower the chances of them experiencing international pressures to act on LGBTQ+ equality. Therefore, Ayoub makes a clear distinction in how norms that shape legislation on LGBTQ+ issues are diffused differently and by different countries according to the period of time of their membership in the EU. (Ayoub 2015, p.297-301; p.311-313).
Evidently, not only will the processes of diffusion differ, but there will also be different levels of acceptance and assimilation of norms on LGBTQ+ issues across the EU and it is fundamental to take that into account when discussing legislation on the matter. Indeed, “the diffusion of ideas is not a process free of conflict, resistance, and politics” and does not produce “homogeneity and convergence” (Börzel and Risse 2009, p. 5); if anything, it reveals the heterogeneity and diversity in the EU. Whilst this might seem evident and is indeed at the very core of the European project, it poses a challenge to the process of adopting legislation on LGBTQ+ issues, such as in the case of the proposed horizontal directive.
Further challenges are manifested in the diffusion of norms in the context of LGBTQ+ issues in the EU. As Graham highlights, the ‘purest’ form of diffusion connotes that ideas and norms originate in one place and then spread (Graham 2009, p. 302-303). Certain long-standing Member States, such as the Netherlands and Sweden, who have a proven record in implementing non-discrimination legislation and other pro-LGBTQ+ legislation arguably believe in this pure form of norm diffusion and see themselves as more advanced on the matter than other newly admitted countries. (ibid). This may pose a challenge for the implementation of legislation at the EU level, given that some countries may argue that they already possess the tools to adopt said
legislation and, therefore, do not wish for EU intervention. In any case, this argument can also apply to the EU, given that it presents itself as rational, enlightened and morally superior on LGBTQ+ rights, and therefore considers it to be its duty to implement policies and legislation on the matter not only within the Union but also in
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its foreign policy. Proof of this is in the Commission’s words in the 2004 ‘Green Paper on equality and non-discrimination in an enlarged European Union’, which state that “when it comes to legislation in this area [against all forms of discrimination], the European Union has one of the most advanced legal frameworks to be found anywhere in the world” (European Commission 2004, p.6). This sense of moral superiority is not only relevant to the EU in comparing its own LGBTQ+ legislation vis-à-vis external actors; it can also be used as an incentive for those countries within the Union who fail to implement sufficient non-discrimination legislation.
In sum, processes of norm diffusion significantly contribute to shaping policies and legislation on LGBTQ+ issues in the EU. As Ayoub argues, mechanisms of norm diffusion on the subject will vary and work differently depending on how long Member States have been part of the Union, and, on that basis, makes a distinction between long-standing and newly admitted Member States. The proposal for the horizontal Anti-Discrimination Directive, which is a result of a process of diffusion on LGBTQ+ norms will be analysed in accordance to Ayoub’s line of argument. Additionally, when
analysing this piece of legislation, it will be worth examining whether the challenges in processes of norm diffusion on LGBTQ+ issues highlighted by Graham are also
reflected in the directive’s failure in implementation.
3.2. EU neoliberal governance, queer theory and legislation on LGBTQ+ rights
Another important observation raised in the scholarly literature review on LGBTQ+ issues in the EU is that existing legislation on the subject, and particularly on non-discrimination legislation on grounds of sexual orientation, is that it has market-oriented foundations. As Thiel highlights, “the EU’s history of anti-discrimination policies is legally based on the single market legislation, and as such automatically narrows legal rights against discrimination to employment- or market-related issue areas” (Thiel 2015, p.80). Based on this, it is essential to discuss the process of drafting and implementing legislation on LGBTQ+ issues from a neoliberal theoretical perspective, in order to understand its influence on the proposed horizontal directive.
David Harvey has defined neoliberalism as a form of governance that “proposes that human well-being can best be advanced by liberating individual entrepreneurial
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freedoms and skills within an institutional framework characterized by strong private property rights, free markets, and free trade” (Harvey 2005, p.71). Hence, it is expected to “shift the locus of power away from citizens and their representatives towards those with capital” (Ives 2015, p.1). One can identify the key elements of neoliberalism as (a) a claim that the market is better than the state at distributing public resources and (b) a return to a primitive form of individualism; one which is ‘competitive’, ‘possessive,’ and construed often in terms of the doctrine of “consumer sovereignty” (Ong 2006, p. 11, as cited in Binne 2013, p. 243). In short, neoliberal practices are essentially those that favour market liberalisation (private sector) over state intervention (public sector).
Several authors have argued that the European Union and the process of European integration are neoliberal at their very core (van Apeldoorn 2009; Cafruny and Ryner 2003; 2016; Hermann 2007).I do not fully support this claim given the EU’s substantial efforts in achieving integration beyond the economic context, namely in terms of socio-political and cultural integration; evident, for instance, in the Member States’
commitment to the fulfilment of the Treaties, the consolidation of the European Charter of Fundamental Rights and the implementation of the EU-coordinated Bologna Process, ensuring an equal standard of education throughout the Union, and the creation of the ERASMUS programme (European Region Action Scheme for the Mobility
of University Students), despite the limited tangible positive effects of the latter (Sigalas 2010; Wilson 2011). Additionally, as stated above, the relevance of European social and cultural norms and their diffusion must also be taken into account in understanding the essence of the EU.
Nevertheless, if one is to examine at the context in which the EU originated and developed and the policies and decisions implemented over time, the argument of a strong neoliberal component in the EU’s form of governance is, to a certain extent, well-founded.We see this, for starters, with the creation of the European Coal and Steal Community as early as the 1950s as a means to integrate the coal and steel industries in Western Europe and gradually extend to other economic spheres (European Parliament 2018, p.3). This continued with the development of a European Economic Community, the establishment of the European Single Market (Gill 1998), which guarantees the free movement of people, capital, services and labour – the ‘four freedoms’ −, and the creation of the ‘euro’ (€) as the European single currency. Thus, essentially, there has always been a strong neoliberal element in the EU’s form of governing.
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With this in mind, it has been argued that this has inevitably also extended to policy and legislation on LGBTQ+ issues. This is clearly visible through the implementation of the Equality Framework Directive, which, as discussed previously in this paper, limits the protection of citizens from discrimination on grounds of sexual orientation only to the labour market and, therefore, it is essentially tied to neoliberal market-related contexts (Bell 2002; 2004). Queer theory and politics literature have addressed the relationship between LGBTQ+ citizens and neoliberal governing (Bell and Binnie 2000; Duggan 2003; Woltersdorff 2007; Cossman 2007; Binnie 2010, 2014) by, indeed, pointing out that sexual orientation antidiscrimination legislation is part of neoliberal governing in the EU. Queer theory is a fairly recent critical theoretical perspective which gained insights from thinkers such as Foucault, Sedgwick and Butler amongst others, and has gained increasing scholarly attention and recognition in the fields of anthropology (Kirsch 2013) and especially political science (Smith and Lee 2015; Weber 2014, 2016; Thiel 2014, 2015; Picq and Thiel 2015; Muehlenhoff 2019). As a theory it entails “any form of research positioned within conceptual frameworks that highlight the instability of taken-for-granted meanings and resulting power relations” (Browne and Nash 2010, p.4), be it in terms of race, class, gender or sexual identities, and it essentially highlights the fluidity of the latter (Thiel 2014).
Scholars in the field of queer theory and queer politics have argued that some of the aforementioned elements of neoliberalism, such as the encouragement of a form of competitive individualism, can, indeed, influence the LGBTQ+ community and arguably give them a sense of empowerment. (Haney 2008, as cited in Binne 2013, p. 244). However, it does not empower all LGBTQ+ citizens in the EU in the same way. Due to a greater level of visibility and the fact that they represent a larger fraction of the LGBTQ+ community, gay men and lesbian women, or “double-income-no-kids
markets” (Thiel 2015, p. 81), are more likely to engage in and benefit from neo-liberal market policies and legislation in the EU (Bell and Binnie 2004; Oswin 2005). This is clearly reflected in the limited legislation on LGBTQ+ rights, which, as already indicated, only prohibits discrimination on grounds of sexual orientation, and thus, is limited to gay, lesbian and bisexual people.
It has also been noted that these policies are set in a heteronormative context and, as such, gay men and lesbian women are expected to become involved in processes of normalisation and adapt to said heteronormativity as a means to achieving economic
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success. In that sense, the circumstances for the rest of LGBTQ+ citizens, other than gays and lesbians, are different. Their lack of visibility and more evident ‘queerness’ makes it harder for them to benefit from ‘heteronormative oriented’ neoliberal policies and legislation. As Binne and Klesse (2012) point out, “there are queer winners and losers of neoliberalism, and it is important to recognise the ambivalences and
contradictions produced through neoliberalism” (p. 246.). On that basis, queer theory also questions whether assimilation and adaptation to heteronormative norms is
something that the majority of the LGBTQ+ community, aside from gays, lesbians and bisexual people, in reality wish for.
As such, from a queer theory perspective, legislation and policies on sexual
orientation discrimination, such as the Equality Framework Directive, benefit a certain part of the LGBTQ+ community to the detriment of others, who either find it harder to benefit from neoliberal policies and legislation or oppose to them to begin with, by rejecting assimilation and adjustment to a consumerist heteronormative system. Thus, the pre-existing legislation has hardly contributed to challenge the power structure of socially entrenched heteronormative norms vis-à-vis non-heteronormative ideas.
Therefore, it becomes essential to analyse future policies and legislation on LGBTQ+ issues in the EU through the critical lens of queer theory, given that it “exposes,
subverts and replaces heteronormative policies with more fluid ones (…) that contain an inherent critique of the consumerist-capitalist society” (Beger 2009, as cited in Thiel 2015, p. 89). Hence, the proposed horizontal directive will also be analysed from a queer theory perspective in line with queer literature, in order to determine whether its content reveals neoliberal inclinations and whether it is an inclusive piece of legislation for all LGBTQ+ citizens.
In sum, this chapter has focused on examining two different, yet crucial, theoretical approaches that can account for the process of drafting and implementing legislation on LGBTQ+ issues in the EU. On the one hand, Ayoub’s approach on the diffusion of LGBTQ+ norms and how they shape legislation suggests that different countries within the EU will be subject to different mechanisms of diffusion depending on the length of their membership. These mechanisms, as well as challenges in processes of diffusion raised by Graham will be analysed in line with the proposed Anti-Discrimination
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Directive later in this paper. On the other hand, I gained insights from queer theory and literature insights, which can account for the EU’s neoliberal governance and manifest how this is reflected in legislation on LGBTQ+ issues, and specifically on sexual orientation discrimination legislation. From this perspective it is argued that, indeed, said legislation has market-based foundations and it benefits mostly the gay and lesbian population within LGBTQ+ community, who are more likely and willing to assimilate heteronormative norms. For the purpose of this paper, it is also relevant to analyse the horizontal Anti-Discrimination Directive from a queer theory perspective, to examine whether extending non-discrimination legislation beyond the market-oriented contexts to social policy fields breaks with this neoliberal conception of EU legislation on the subject and whether it is more inclusive in scope and content or is simply another piece of legislation that only protects a limited component of the LGBTQ+ community in the EU.
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4. Methodology
As mentioned in previous sections of this paper, my aim is to examine the extent to which there is an inconsistency between the EU’s self-proclaimed image of an LGBTQ+ advocate and the lack of EU legislation on LGBTQ+ rights. I intend to discuss this inconsistency by analysing the proposal for a horizontal
Anti-Discrimination Directive, which would significantly expand the scope of protection from discrimination of many LGBTQ+ people and which, as proven in the literature review, has not received significant scholarly attention. In this section I will outline the strategy used to gather data on the horizontal directive, along with the methodology used to analyse the information. The data gathered will be analysed in line with insights drawn from the previous theoretical framework chapter, which essentially include Ayoub and Graham’s insights on LGBTQ+ norm-diffusion as well as a queer literature perspective on the EU’s neoliberal system of governance and its influence on existing anti-discrimination legislation.
The Anti-Discrimination Directive, as introduced previously, was proposed over ten years ago by the Commission in order to extend the scope of the Equality Framework Directive. Having received support by the European Parliament, it failed to reach a unanimous agreement in the Council, and in consequence, failed to be implemented. Thus, when analysing the directive, it becomes essential to examine the role of the actors involved in the legislative process; that is, this paper takes an institutional approach in its analysis of the proposed directive.
The key methodology chosen in this paper to gather data on the proposed directive is qualitative interviewing. Conducting interviews as a primary form of research on the proposed horizontal directive allows me not only to gather further factual information about the piece of legislation, but also to gain further insights about the process (Gubrium & Holstein, 2001; Schostak, 2005), in order to understand the contexts in which it originated and developed, to raise further questions and to understand the complexities and dimensions involved in the process that may not seem evident when reading into the official piece of legislation itself. Given the institutional focus of this paper, interviews were arranged with stakeholders from the aforementioned institutions directly involved in the legislative process on LGBTQ+ issues along with other actors
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indirectly involved. Interviewing people within the different institutions will allow me to analyse the content and context of the directive from different perspectives, all of which equally valid and necessary to understand its significance.
For the purpose of this paper I conducted four interviews with representatives of the main institutions involved in the EU legislative procedure; that is, the Commission as the legislative proposer, and the European Parliament and the Council of the European Union as adopters of all legislation, including non-discrimination, and therefore, also the proposed horizontal directive. The interviews were conducted in Brussels in the months of January and February 2019, the respondents of which consisted in: #1A, an employee in the European Commission involved in the EU’s work on
non-discrimination, #2B, an employee at the General Secretariat of the Council in the field of non-discrimination, #3C, a Member of the European Parliament (MEP) and also a member of the LGBTI Intergroup, #3D, a representative of the LGBTI Intergroup in the European Parliament. Intergroups in the Parliament are structures organised by MEPs who discuss particular topics that may not fall within the scope of the Parliament’s duties, in this case LGBTQ+ issues, which do not represent the views of the Parliament. The LGBTI Intergroup is currently the European Parliament’s largest intergroup
(LGBTI Intergroup 2019). I conducted two interviews within the European Parliament given the difference between an MEP, who has a political affiliation, is recognisable and has a reputation to uphold, and a representative of the LGBTI Intergroup, whose role does not involve any political affiliation or inclination. In addition to the
aforementioned interviews, I also conducted one interview at the European Network for Equality Bodies (Equinet). This is due to the fact that, in accordance with EU anti-discrimination legislation, Member States are required to set up equality bodies to combat discrimination on grounds of race and ethnic origin (Council Directive 2000/43/EC) as well as sexual orientation (Council Directive Proposal 2008/0140). Hence, equality bodies are national level bodies that seek to promote the principle of equal treatment in line with EU legislation and Equinet is the body that regulates them at a European level, as well as acting as an intermediary between the EU and civil society. Therefore, it is also crucial to gain insights from this network, which is vital in the framework of anti-discrimination legislation in the EU. As such, I interviewed #4E and #4F, an employee and a trainee at Equinet, also in Brussels during the month of January 2019. Hence, in total five interviews were conducted for this paper with all
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three institutions directly involved in the legislative procedure on anti-discrimination, as well as with Equinet, a body also indirectly involved in the process. As stated
previously in this paper, given that the focus is institutional, interviews with civil society organisations were not conducted.
The interviews were semi-structured in nature. The respondents received, in advance, a list of questions (Annex VI) that addressed a specific set of issues, including the possible causes explaining the failure in implementing the proposed horizontal directive, the economic nature of legislation on LGBTQ+ issues and the correlation between European norms and values and the promotion of LGBTQ+ rights, amongst other issues. They were semi-structured in order to allow the broad topics to be covered, as well as to enable additional unplanned questions and points of discussion to be raised during conversation. (Longhurst 2003; Adams 2015) In the next chapter I will disclose the key themes, arguments and observations covered by all respondents during the interviews.
The respondents have been given numbers and letters instead of their names in order to ensure confidentiality, given that some interviewees wished to remain anonymous. Additionally, besides omitting their name, their gender and specific job role in the referred institution or organisation will also not be disclosed. It is also important to mention that some interviews were recorded, the transcripts of which can be found in the annexes of this paper (Annex I, II, III), whilst others were either written responses (Annex IV) or not recorded by wish of the interviewee (Annex V); hence, I will refrain from directly quoting the respondents.
Based on this, the purpose of the analysis will be to examine the content derived from the interviews regarding the proposed directive as well as other relevant
information in relation to it. Content analysis as a research method essentially serves the purpose of systematically examining communicative material, which not only includes text, but also audio and video, amongst others (Mayring 2004). It can be used as a quantitative form of research to gather large amounts of data in the field of
communication (Berelson 1952; Riff, Lacy, Fico and Watson 2019). In its qualitative form, it is of particular interest in the field of social sciences (Weber 1990; Krippendorff 2004; Neuendorf 2016), given that it allows the researcher to make sense of historical documents, political speeches or official publications (Weber 1990) and allows us “to discover and describe the focus of individual, group, institutional, or social attention”
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(Stemler 2001, p.1). Indeed, this is the case of the analysis in this paper; qualitatively analysing the content of the interviews in relation to the proposed directive from the perspective of each relevant institution or group.
However, despite the aforementioned benefits in conducting interviews, there are, evidently, also certain limitations and shortcomings. For starters, interviews are time-consuming in terms of arrangement and transcription and there are certain expectations in terms of the quality of the data, which may not always be met (Adams 2015).
Additionally, having only conducted five interviews with specific individuals, the results will not be a comprehensive and faithful representation of the institutions’ views on the directive as a whole. Furthermore, there will be a level of subjectivity from the respondents and their responses might be guided or affected by their emotions. In consequence, complete objectivity in their answers cannot be guaranteed. In that same line of argument, there may be some potential inadvertent bias on my part based on the way in which questions are asked and certain issues are raised (Alsaawi 2014, p. 154-155). For this reason, and with the purpose of complementing the data gathered from the interviews and strengthening the arguments presented by the interviewees, the content of EU official documents from the relevant institutions on the horizontal directive and related matters will also be analysed. These documents will mainly include the Commission’s draft proposal for the horizontal directive and guidelines, Council conclusions and progress reports and Parliamentary reports and resolutions.
Therefore, whilst the initial intention was to examine the qualitative data gathered from the interviews, this will be analysed alongside the content of the supporting EU documents on the horizontal directive. This method which combines “data drawn from different sources and at different times, in different places or from different people” (Flick 2004, p.178) is referred to as ‘triangulation of data’ and. Hence, by means of triangulation of data gathered from both interviews and relevant official documents, I shall analyse its content, whilst drawing on the theoretical insights presented in the theoretical framework chapter.
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5. Data analysis
As mentioned in the previous chapter of this paper, I conducted interviews with specific officials within the EU’s key legislative institutions (the European Commission, the Council and the European Parliament) and Equinet (European Network of Equality Bodies). I did so taking into account that 1) this paper’s case study, the proposed horizontal Anti-Discrimination Directive, is a piece of legislation and it remains, therefore, crucial to analyse the main institutions and groups involved in proposing, amending and influencing the legislative process at the EU level, and 2) the work of my interviewees is specifically focused on anti-discrimination and LGBTQ+ issues and, as a result, they are informed about my case study. In addition to the data gathered from the interviews, I have also selected specific supporting EU documents, mainly Commission proposals, Parliamentary resolutions and Council conclusions amongst others, which either add valuable factual information, provide context to given statements or strengthen the interviewees’ arguments.
Based on the data gathered from interviews, along with supporting key documents, I have selected key overlapping arguments and themes that will be analysed and
discussed in line with the theoretical insights previously introduced in this paper. These are:
5.1 The neoliberal nature of EU anti-discrimination legislation
The first theme to be discussed based on the findings from the interviews and the relevant EU documents and publications is the distinct economic essence of EU legislation on LGBTQ+ issues, namely on non-discrimination. This question was addressed with most respondents (Interviews #2B, #3C; #3D #4E; 2019), given the fact that currently the only adopted piece of legislation on discrimination that affects (some) LGBTQ+ citizens is the 2000 Equality Framework Directive. The reason I say ‘some’ will be discussed further below in this section. This directive, as already introduced in this paper, is considered to be ground-breaking given that it remains the first and only piece of legislation to ensure the protection citizens from discrimination on grounds of
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sexual orientation, as well as race, religion or belief, age and disability. Nevertheless, it is only limited to the field of employment and, therefore, only when there is economic activity involved.
When the respondents are asked why this was the first policy field in which such an important piece of legislation was introduced, some simply state that it is crucial to focus on the workplace given that many LGBTQ+ citizens continuously face
discrimination since the early stages of their professional career when searching for jobs and it affects the prospects of the career development (Interview #3C, 2019). However, there are other equally important fields beyond the labour market, such as education, access to goods and services and healthcare in which LGBTQ+ citizens face
discrimination, which the proposal for a horizontal Anti-Discrimination Directive aimed at covering, yet it fails to be approved and enforced. When asked, more specifically, whether the Employment Framework Directive being successfully implemented (as opposed to the proposed horizontal directive) reflects an economic priority in the EU’s policymaking approach on discrimination issues, several respondents agree (Interview
#2B; #3D; 2019). They point out that, indeed, the EU is above all an economic union
and it has direct competence on the matter; therefore, it has consistently prioritised pragmatic economic-oriented policies over others, also in terms of non-discrimination policies and legislation. On this point, respondent #3D argues that based on the
legislation on sexual orientation discrimination implemented thus far, the EU relies on an economic argument to ensure greater equality; that is, the argument that it is in everyone’s (economic) interest to minimise discrimination on grounds of sexual orientation at the workplace in order to keep a high level of optimisation. What is suggested from this perspective is that EU legislation on discrimination is not
implemented for the simple purpose of fighting against discrimination, but instead, that minimising discrimination can be used as leverage for the economic gain of all parties concerned. It is, thus, essentially a mechanism to ensure LGBTQ+ citizens can also benefit in a capitalistic society and market-oriented economic system.
Additionally, even in the draft of the proposed horizontal Anti-Discrimination Directive, which, as stated, would expand the scope of the Employment Framework Directive to other social policy areas,one can clearly identify the Commission’s efforts in drafting a proposal with the goal of ensuring economic growth and stability. As disclosed in the draft itself, “this proposal builds upon the strategy developed since the
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Amsterdam Treaty to combat discrimination and is consistent with the horizontal
objectives of the European Union, and in particular with the Lisbon Strategy for Growth and Jobs (…)” (Proposal for a Council Directive 2008, p.3). Furthermore, the
Commission’s priority in consulting business sectors on the proposal is also referred to in the draft, in which it is stated that “particular mention should be made of the public on-line consultation, a survey of the business sector (…)”, amongst other consultation processes. Moreover, references are made in the proposal that highlight the economic benefits that its implementation would entail, particularly that “the European Business Test Panel consultation indicated that businesses believe it would be helpful to have the same level of protection from discrimination across the EU” (ibid).As a final note on the content and wording of the proposal, the Commission states, based on an assessment report of evidence on discrimination outside of the labour market, that “those at risk of discrimination often find themselves less able to participate fully in society and the economy, with negative effects both for the individual and for broader society” (ibid, p.5).
Indeed, as introduced earlier in this paper, there has been increasing scholarly work focused on the EU’s “market oriented legal prerogatives” (Thiel 2015, p. 77) on LGBTQ+ issues (Bell and Binnie 2004; Oswin 2005; Binnie and Klesse 2012, 2013; Thiel 2014, 2015), mainly through legislation on sexual orientation discrimination. As Thiel (2015) points out, the EU’s history of anti-discrimination policies is entirely based on market-based policies and given the limited scope of said policies and legislation to the labour market on grounds of sexual orientation, there is an urgent need to question the compatibility between neoliberal policies and their implications they have for the LGBTQ+ population. The aforementioned pieces of legislation, that is, the Employment Framework Directive and the proposed Anti-Discrimination Directive are not only market-oriented, but as reminded by some interviewees, they only cover discrimination on grounds of sexual orientation (Interviews #4D, #3E; 2019); therefore, only the letters ‘LGB’ in the acronym. As Thiel highlights, there is a hierarchy within the community that elevates especially gay and lesbian people above the rest of the community due to their higher socio-economic visibility over time (ibid, p. 84), which is evidently reflected in the aforementioned legislation.
Based on this, it can be argued that due to this increased socio-economic visibility, the ‘LGB’ are easier targets of neoliberal policies and are expected and encouraged to
