Equality Package: Denouncing ‘pink washing’ declarations from the Commission
We demand long overdue actions to defend the rights of LGBTIQ+ people in the Union.
On 7 December 2022, the European Commission adopted two proposals labelled as the ‘equality package’. Forbidden Colours considers that this package of minor measures serves to hide the overall inaction of the European Commission on the defense of the right of LGBTIQ+ people in the Union.
Major initiatives announced by the European Commission in the last years have not been followed up by any action. The infringement procedure against Hungary announced by the European Commission in July 2022 has still not been filed at the Court of Justice of the European Union. Announcing measures in support of the rights of LGBTIQ+ people but not acting has a name. It is called ‘pink washing’.
Forbidden Colours demands that the European Commission takes long overdue action to defend the rights of LGBTIQ+ people in the Union. By effectively launching an infringement procedure against Hungary. By making sure that the existing ruling of the Court of Justice of the EU regarding marriage and parenthood are complied with by Romania and Bulgaria.
“The Equality Package is an empty document. It rewrites already existing EU law. Instead of coming with this proposal, the Commission should enforce the already existing case law for the LGBTIQ+ communities. Member states, such as Bulgaria and Romania, are ignoring court rulings by the European Court of Justice on the mutual recognition of parenthood. The European Commission is unwilling to enforce these rulings on their member states. This is what we call in law: dereliction of duty.”
“Since 2019, the European Commission has promised a lot and delivered nothing. Key initiatives announced in front of the media have been quickly put under the rug. That’s what ‘pink washing’ is. LGBTIQ+ people in Hungary, in Italy and in the rest of the EU are left powerless, witnessing the cowardice of the European Commission and its unwillingness to defend their fundamental rights and the rule of law.”
Infringement procedure against Hungary: announced but never filed
In June 2021, Hungary adopted a law – allegedly for child protection – that directly aimed at silencing the LGBTIQ+ communities. Copied from a similar law adopted in Russia in 2013, this ‘anti-LGBTIQ+ propaganda’ law prohibits the depiction of LGBTIQ+ people and the discussion of LGBTIQ+ content in all the spaces where children could be – meaning almost anywhere.
Books presenting LGBTIQ+ characters can no longer be sold in bookshops less than 200 meters from schools or churches. When sold, these books are required to be covered by a disclaimer saying they depict situations ‘outside the traditional gender norms’. No LGBTIQ+ related content can be shown by any media before 11pm. No comprehensive sexual and relationship education can be provided in schools anymore.
The chilling effect of the law is dramatic. Because the law uses vague and undefined terms such as ‘depiction’ and ‘propagation’ of LGBTIQ+ content, it is far reaching in its potential applications. Self-censorship of the media made all LGBTIQ+ content disappear from public discussion. Teachers do not mention LGBTIQ+ topics and fear losing their job if they dare to support LGBTIQ+ students looking for help. Parents could even face criminal sanctions for providing access to LGBTIQ+ content to their own children.
Even though this law blatantly violates the Charter of Fundamental Rights of the EU as well as EU directives on services and media, it already took a year for the European Commission to announce in July 2022 that they considered launching an infringement procedure against Hungary.
Yet, five months since the announcement, the infringement procedure has still not been filed at the Court of Justice of the European Union.
A year and a half after the adoption of the law in Hungary, LGBTIQ+ people and grassroots LGBTIQ+ organizations are constantly under threat. Enough time has been lost. Forbidden Colours demands that the European Commission files the case at the Court of Justice of the EU without further delays with the following conditions:
- The European Commission needs to file the case requesting interim measures to suspend the law while the lawsuit is pending.
- The European Commission needs to request an accelerated procedure.
Forbidden Colours also invites all Member States to join the procedure with their written observations as soon as the European Commission files the case.
Proposals on equality bodies and on parenthood: measures masking the failure of the European Commission to defend the rule of law
On 7 December 2022, the European Commission adopted two proposals labelled together as the ‘equality package’. The presentation of these proposals by Commissioner Reynders and Dalli leaves no doubt that their effect for LGBTIQ+ people will be limited.
The first proposal concerns the harmonization of the functioning of equality bodies across the EU. This proposal aims to make sure that these bodies follow similar rules in different Member States. Yet, this proposal does not modify the scope of these equality bodies – such a modification would require unanimity of the Member States. The decision for equality bodies to cover discriminations regarding sexual orientation, gender identity, gender expression, and sex characteristics is left to the Member States, except when already agreed EU directives mention overwise. Hence, this first proposal will have strictly no additional effect on the protection of LGBTIQ+ people in the Union.
The second proposal regarding parenthood would provide additional protection to the current state of the law for example for succession and maintenance rights. Yet, on the matter of parenthood, this proposal is mainly restating what the Court of Justice of the European Union has already ruled.
In the Coman case, the Court of Justice has already ruled in June 2018 that a spouse in one Member State is a spouse in all EU Member States. In December 2022, Romania has still not complied with the ruling. Yet, the European Commission, which has the responsibility to ensure that EU law is respected, has still failed to take measures to make sure that Romania complies with the ruling.
In the Baby Sara case, the Court of Justice of the EU has already ruled in December 2021 that parenthood recognized in one Member State must be recognized in all EU Member States. Yet, the European Commission has still failed to take measures to make sure that Bulgaria complies with the ruling.
The proposals under the ‘equality package’ will require unanimity from the Member States to be fully adopted. In the current context, this condition limited not only the scope of the European Commission proposals but it also questions whether these proposals have any chance to be adopted at all. Regarding the equality bodies, two similar proposals must be adopted under two different legal procedures – one by the Council only, the other in co-decision between the Council and the European Parliament – as the directives they cover were adopted under different procedures. In this context, it is to be expected that the two laws adopted will be different, creating a Kafkian situation for the national equality bodies they regulate.
Forbidden Colours reminds here that the Equal treatment directive put forward by the European Commission in 2008 requiring unanimity has still not been adopted by the Council of the Member States. Over the last 14 years, four Commissioners have promised to deliver on that directive and failed. Sadly, it seems that these proposals might endure the same fate.
