Sexual Orientation and Gender Identity Law in the European Union and Its Court of Justice

Abstract

This chapter provides an overview of European Union (EU) legislation and the case law of its Court of Justice (CJEU) in matters of non-discrimination based on gender identity and / or sexual orientation in employment, asylum, blood donation, and of the free movement of same-sex partners and parents. The CJEU has recognized very early that discrimination based on gender identity re-assignment constitutes direct sex discrimination. However, the same has not been the case for homosexuals and same-sex couples. It was only after the introduction of Article 13 of the ‘Treaty establishing the European Community’ (through the Amsterdam Treaty), that the EU acquired the competence to adopt anti-discrimination legislation. Consequently, Directive 2000/78 was adopted, which precludes discrimination based (amongst others) on sexual orientation in EU matters, notably employment and free movement of persons. Moreover, the CJEU has shown remarkable sensitivity in asylum cases by taking the principle of human dignity into consideration.