Rien que des mots: Counteracting homophobic speech in European and U.S. law

Homophobia and homophobic speech

In Lustig-Prean and Beckett (1999), which involved the dismissal of homosexual members of the military, the ECtHR emphasized that homophobia, in particular, negative attitudes and beliefs held by a heterosexual majority towards homosexuals, cannot amount to sufficient justification for discrimination, any more than similar negative attitudes towards those of a different sex, origin or colour. ²⁰ This position has been adopted in subsequent ECtHR case-law involving the rights of LGBT persons, ²¹ as well as in a Recommendation of the Committee of Ministers of the Council of Europe. ²² The Recommendation held that neither cultural, traditional nor religious values, nor the rules of a dominant culture can be invoked to justify hate speech or any other form of discrimination, including on grounds of sexual orientation or gender identity.

In the jurisdictions under consideration, legally challenging homophobia has fallen within the broad yet interrelated frameworks of hate speech as well as discrimination and harassment (within the spectrum of employment). Nevertheless, the court use of the wide term of ‘homophobia’ lacks explicit judicial symmetry with notions of ‘hate speech’ and ‘harassment’. In fact, the consistent usage is not evident in any of the judgements discussed in this paper and the term ‘homophobia’ or ‘homophobic speech’, more specifically, acts more as an abstract umbrella framework, whereas the counterparts of hate speech (or incitement to hatred) ²³ and harassment ²⁴ have been explicitly addressed by courts in Europe and the US respectively. However, the term ‘homophobic speech’ or ‘comments’ indeed figure in both US and European court cases. ²⁵

Hate speech

Hate speech consists of verbal or non-verbal communication that involves hostility directed towards particular social groups, most often on the grounds of race and ethnicity (racism, xenophobia, anti-Semitism, etc.), gender (sexism and misogyny), sexual orientation and gender identity (homophobia and transphobia), age (ageism) and disability (ableism). ²⁶ The phenomenon addressed by hate speech has been referred to in European criminal statutes after World War II, mostly under the heading of ‘incitement to hatred’. ²⁷ In contrast, the constitutional doctrine of the first half of the 21st century tends to adopt a direct word-by-word translation of the American term ‘hate speech’. ²⁸ Depending on the jurisdiction, a victim of hate speech may seek redress under criminal law, civil law or both. Since the second half of the 20^th century, states have fostered various mechanisms to counteract hate speech, foremost via criminal law, special anti-discrimination and labour laws – particularly anti-harassment clauses – as well as via media-law provisions. In addition, some newer constitutions, for example, in Latin America, ²⁹ Slovenia, ³⁰ and the South African Republic, ³¹ include specific clauses meant to prohibit incitement to hatred. This is uncommon in older constitutional texts. Initially, the prohibition of hate speech occurred exclusively on the grounds of race and ethnicity, while in recent years it gradually began encompassing other non-discrimination grounds such as sex, sexual orientation and disability. ³²

Scholars often argue that hate speech is commonly discussed in constitutional law through the looking glass of justifiable restrictions on freedom of speech. ³³ In this respect, the ‘U.S.’–‘European’ models of free speech regulation are widely acknowledged as emblematic of constitutional importation elsewhere. Since the 1960s, higher courts in Europe and the U.S. Supreme Court have developed divergent ways of dealing with hate speech. It has been underlined that the U.S. and European models of free speech regulation have been analysed as central in comparative constitutional writings on hate speech. ³⁴ In order to allow for a well-rounded comparison, it must be noted that despite the restriction of hate speech (including homophobic speech) by the ECtHR as will be demonstrated below, on an EU level, the only legal tool available to tackle hate speech beyond the framework of employment ³⁵ is the Framework Decision on Racism and Xenophobia (2008) ³⁶ which covers the phenomena of racism and xenophobia but does not extend to other forms of intolerance and hate. In addition, at the Council of Europe level, the Additional Protocol to the Cybercrime Convention concerning the Criminalization of Acts of a Racist and Xenophobic Nature committed Through Computer Systems only deals with online racist and xenophobic speech. The Cybercrime Convention ³⁷ was signed and ratified by countries beyond the Council of Europe, including the U.S. The U.S. acceded to the Convention only after the issue of online hate was removed from the discussion table. To compensate for the exclusion of hate speech from the Convention itself, the Additional Protocol was drafted. Nonetheless, just as with the EU’s Framework Decision on Xenophobic Speech 2008, the Additional Protocol focuses only on racist and xenophobic material, with no provisions on, for example, homophobic and transphobic utterances. It can therefore be argued that this demonstrates a hierarchy of what institutions consider to be punishable types of hate and what they consider to fall outside the sphere of criminal law. ³⁸ The implicit conclusion from both of these documents is that racist and xenophobic material and speech should be punished, whereas, for whatever arbitrary reason, homophobic and transphobic speech and material is to be disregarded in the sphere of criminal law. ³⁹

Harassment

Some incidents of hate speech in the employment environment can also be regarded as a matter of labour law. Since the end of the 1990s, an increasing number of jurisdictions around the world have been offering protection against a ‘hostile working environment’ via employment and anti-discrimination laws, outlawing verbal and non-verbal expressions through categories such as harassment, sexual harassment, victimization, mobbing, intimidation and stereotyping. ⁴⁰ This is the precise route chosen by the EU as well, tackling discrimination and harassment on grounds of sexual orientation (but not gender identity) through Directive 2000/78/EC on equal treatment in employment and occupation (further Framework Equality Directive, or FED). The terminology of harassment is a transatlantic legal transplant, protected in the U.S by virtue of Title VII of the Civil Rights Act 1964. In the U.S., this provision was primarily meant to address discriminatory practices against racial minorities, which makes particular sense in the American employment context, whereas hate speech has been systematically justified by the Supreme Court under the First Amendment. ⁴¹ The Civil Rights Act covers the grounds of race, colour, religion, sex and national origin. By the 1980s, the U.S. Equal Employment Opportunity Commission had issued guidelines on sexual harassment as a breach of section 703(a)(1) of Title VII of the Civil Rights Act 1964. ⁴² In the case of Oncale (1998) discussed further down, same-sex sexual harassment was found to be actionable under the Civil Rights Act.

Since the 1990s, a number of European countries have been targeting hateful expressions in the employment context as a part of workplace harassment. For example, intimidatie in Dutch, harcèlement moral in French and trakasserier in Swedish all reflect the European dignity paradigm of constitutional reasoning. It has been noted that Sweden and France were particularly active in fostering various anti-harassment practices in labour law, linking them to workers’ dignity. ⁴³

In EU law, the Framework Equality Directive contains four grounds of prohibited conduct, namely direct discrimination, indirect discrimination, harassment and instruction to discriminate.44 As to the substance of the term harassment, ⁴⁵ the general definition provided in the Directive appears fairly clear. ⁴⁶ However, looking at the case-law of the CJEU, the difference between direct discrimination and harassment remains enigmatic. ⁴⁷ On an EU level, it is, in particular, unclear what precisely constitutes harassment as a separate form of discrimination and how national authorities should redress it. Even in cases that resemble the definition of harassment rather than sensu stricto, direct or indirect discrimination, the Court appears to construct harassment as a sort of direct discrimination for the maximum benefit of plaintiffs. ⁴⁸ The text of the Framework Equality Directive 2000 states that harassment:

shall be deemed to be a form of discrimination … when unwanted conduct related to a certain ground 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. ⁴⁹

However, the FED leaves it to national laws and practices of the Member States to define harassment further. The way that the vague harassment clause in the Directive was implemented in many EU countries suggests that Member States tend to view harassment as a somewhat minor form of discrimination. As will be explained below in the part on EU law, instead of clarifying this complicated and fairly debatable aspect, the CJEU avoids getting deep into the explanation of the subtle distinctions in categories. It leaves it up to the national courts to appreciate the nuances of the discriminatory effects and forms, while stressing that, nonetheless, the sanction – for any form of discrimination – should be effective, proportionate and dissuasive. ⁵⁰

Hate speech

The First Amendment of the U.S. Constitution prohibits Congress from obstructing, amongst others, the exercise of free speech. This has to be seen within the framework of American history, since the U.S. government sought to silence and punish minority and not majority views.’ ⁵¹ As noted, in particular, by Chemerinsky and Gillman:

[…] free speech assisted the drive for desegregation, the push to end the war and the efforts of historically marginalized people to challenge convention and express their identities in new ways. ⁵²

As a result, under the First Amendment to the Constitution, the U.S. Supreme Court, appears to take a less restrictive approach to hate speech compared to European constitutional tribunals after World War II. The Supreme Court has, for example, struck down penalties imposed on racist speech by a Ku Klux Klan leader. ⁵³ Likewise, in 1978, the Court of Appeals struck down a ban on a Nazi march in Illinois, ⁵⁴ and the U.S. Supreme Court, while allowing other penalties on perpetrators, reversed a criminal conviction for burning a cross (the symbol of the KKK) on a Black family’s lawn, overturning a hate crime statute. ⁵⁵

In the 2011 case of Snyder, the U.S. Supreme Court also upheld the right to public assembly of a church picketing the funeral of a U.S. marine, who died from a non-combat–related accident in Iraq, with slogans such as ‘You are going to hell’, ‘Fag troops’ and ‘Thank God for dead soldiers’. ⁵⁶ The members of the church linked the liberalization of attitudes towards the LGBT community with the fate of U.S. soldiers. They praised the soldiers’ deaths as an assumed sign of God’s anger. The dead Marine’s father, Albert Snyder, sued the church, supported by several briefs filed in endorsement of his claim. The local court produced a jury verdict of $10.9 million in favour of Snyder for the invasion of privacy and intentional infliction of emotional distress. Yet, the case reached the Supreme Court, where the majority opinion ruled out content-based restrictions, confirming the traditional position of the Supreme Court that the State may not regulate expression, even when it is as vulgar as the expression in Snyder.

Harassment, discrimination and a hostile working environment

Despite a less restrictive approach to hate speech by the U.S. Supreme Court, much of the hateful expression in the employment context, which is ‘intimidating, hostile or offensive’ to a ‘reasonable person’ are outlawed as creating a ‘hostile work environment’. Employers in the U.S. are, therefore, bound to control workplace actions and their employee’s speech to avoid liability under anti-discrimination provisions or fair employment practices. In this regard, Title VII of the Civil Rights Act of 1964, listing adverse effects on employees with regard to an individual’s race, colour, religion, sex or national origin, has been interpreted as a tool to fight harassment in the labour context. Furthermore, the Equal Employment Opportunity Commission has played a substantial role in fostering a broad understanding of harassment. In the case of Oncale (1998), the U.S. Supreme Court held that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII of the Civil Rights Act. In seeking to ascertain the meaning of harassment in such a framework, the Court held that:

common sense, and an appropriate sensitivity to social context will enable the courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive. ⁵⁷

Further, the Court held that the conditions of employment are alerted only if the harassment culminates in a tangible employment action or is sufficiently severe and pervasive to alter the conditions of employment. Interpreting discrimination under the Civil Rights Act to include same-sex harassment was undoubtedly a big step forward in tackling homophobia in the U.S. Prior to 2020, under the conventional view of Title VII, gay and lesbian workers could bring discrimination claims based on gender stereotyping but not sexual orientation. However, scholarship on the court (of appeal) cases in the US on gender stereotyping in the workplace reveal that the conventional view is wrong. ⁵⁸ Yet, as was demonstrated by Soucek, plaintiffs who ‘look gay’ used to find protection under Title VII, while plaintiffs who were thought to violate gender norms – through known or suspected sexual activity, friendships, hobbies, or choice of partner – rarely won. ⁵⁹

Furthermore, the fact remains that on a statutory level, federal law does not incorporate the sexual orientation ground in relevant legislation such as the Civil Rights Act, a point which the subsequent Equality Act seeks to address. The Equality Act was passed by the United States House of Representatives in May 2019. The new Congress took office in January 2021 and the Act was reintroduced to the House in February 2021. The House passed the Act on the 25th February 2021 (224–206). Currently it is in the Senate and, if passed, it is expected to be signed by President Biden. ⁶⁰

On a jurisprudential level, a major leap forward for LGBT rights in the framework of employment was made in 2020 with a trilogy of cases since the Civil Rights Act 1964 was deemed applicable to discrimination on the grounds of sexual orientation and gender identity. These recent cases include Bostock v Clayton County (2020), ⁶¹ R.G & G.R Harris Funeral Homes v EEOC (2020) ⁶² and Altitude Express, Inc. v Zarda (2020). ⁶³ They all involved an employer firing a (long-time) employee for being homosexual (Gerald Bostock and Donald Zarda) and transgender (Aimee Stephens). In the above (combined) cases, the Court found that the prohibition of sex discrimination under the Civil Rights Act 1964 applies to discrimination based on sexual orientation and gender identity.

In the aforementioned case of Bostock v Clayton County, a gay man, began working for Clayton County (Georgia), as a child welfare services coordinator in 2003. During his 10-year career with Clayton County, Bostock received positive performance evaluations and numerous accolades. In 2013, Bostock began participating in a gay recreational softball league. Shortly thereafter, Bostock received criticism for his participation in the league and for his sexual orientation and identity generally. During a meeting in which Bostock’s supervisor was present, at least one individual openly made disparaging remarks about Bostock’s sexuality and his participation in the gay softball league. Around the same time, Clayton County informed Bostock that it would be conducting an internal audit of the programme funds he managed. Shortly afterwards, Clayton County terminated Bostock’s employment for allegedly ‘conduct unbecoming of its employees’. In this case, the Court was very clear in alluding to the organic nature of law and society, noting that, although the drafters may not have foreseen several of the developments of the Civil Rights Act, including, for example, discrimination on the basis of motherhood, the ‘limits of drafters’ imagination supply no reason to ignore the law’s demands’. ⁶⁵ With a 6-3 majority, the Court found that:

an individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. ⁶⁶

Thereby, recent U.S. developments, within the sphere of employment have granted protection to LGBT persons through the use and application of the Civil Rights Act 1964. The latter has become a tool to tackle homophobic manifestations in the workplace, both in terms of harassment and discrimination. The case-law reveals a coherent level of articulation in terms of how homophobia in the work press is addressed. The current status quo can be improved primarily through the pending Equality Act.

Homophobia-free access to goods and services

In the 2018 case of Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission, the U.S. Supreme Court dealt with the refusal of a baker to make a cake for a same-sex couple’s marriage celebrations, on the grounds of his religious beliefs. Up until the Supreme Court, the previous decisions found in favour of the customers on the grounds that the Colorado Anti-Discrimination Act (2015) prohibits businesses from discrimination on grounds of, inter alia, sexual orientation. ⁶⁸ With two dissenting opinions, the Supreme Court, nonetheless found that the Commission’s position:

Masterpieces Caskehop Ltd v Colorado Civil Rights Commission 584 U.S___ (2018) p.3 violated the State's duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

At the time of Phillips’ refusal, same-sex marriage was not allowed in Colorado and this, the Court found, gave ‘some force to Phillip’s argument that he was not unreasonable in deeming his decision lawful’. ⁷⁰ The Court also found that Phillips was ‘entitled to a neutral and respectful consideration of his claims’ ⁷¹ which was ‘compromised’ ⁷² due to the Commission’s demonstration of ‘impermissible hostility’ ⁷³ towards his religious beliefs. The Court based its decision on this supposed hostility which it found to be inconsistent with the First Amendment.

Considering the above, the Court focused on the alleged hostility the Commission demonstrated against Phillips rather than responding to crucial legal questions vis-à-vis the relationship between anti-discrimination law and expression and (or) religious beliefs. Likewise, the Court did not duly recognize the difference between rejecting a service on grounds of sexual orientation (and thus baking a cake for a same-sex marriage) and rejecting a service which requests morally offensive (for some) messages to be part of that service (i.e. a cake with bible passages referring to homosexuality as sin). It was the Commission’s ‘hostility’ which the Court relied on to make a positive correlation between the Commission’s decision and the First Amendment. It remains to be seen whether future cases involving similar facts (minus the alleged hostility) will be dealt with differently. As argued in scholarship, this case demonstrates that the ‘Court at present may be more inclined to pick liberty over equality’. ⁷⁵

Interestingly, at the time of the pending ‘cake case’, another judgement came about, Arlene’s Flowers v. State of Washington, which involved the refusal of a florist to arrange the flowers for a same-sex marriage. In 2017, the U.S. Supreme Court was petitioned to take up the case, but sent it back to the Washington Supreme Court, instructing it to reconsider it in light of the Masterpiece Cakeshop decision. In 2019, the Washington Supreme Court ruled against the florist for a second time who had, once again, asked the U.S. Supreme Court to hear her case. What will be crucial in this or similar cases in the future, is whether the Supreme Court will provide a legal examination of the nexus between the First Amendment and anti-discrimination laws in the absence of (alleged) hostility on the part of lower courts or bodies. Only then will the legal status quo vis-à-vis the disregard of non-discrimination law on freedom grounds be revealed.

The ECtHR

Numerous cases on hate speech have been brought to the ECtHR, attacking national jurisprudence and alleging the breach of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The large majority of cases have been brought by the ‘speakers’. ⁷⁶ There have been three cases, including a 2020 case in which hate speech judgements were passed following an application by the ‘victims’ of speech’. ⁷⁷ Cases involving hate speech date back to 1979: initially, the ECtHR found such claims unjustifiable since permitting racist utterances would contravene Article 17 ECHR which prohibits the abuse of Convention rights. ⁷⁸ In the 1990–2000s, the ECtHR crystallized its proportionality test on the basis of Article 10 ECHR in hate speech cases, balancing free speech against justifiable reasons for restriction, such as public policy and public security. In particular, the 2000s-stream of cases justified national restrictive measures, sustaining European constitutional views on hate speech as being incompatible with freedom of speech, by leaving the matter to the margin of appreciation of the respective States. ⁷⁹

The ECtHR’s intolerance of homophobic speech was embraced in the landmark judgement in Vejdeland v Sweden (2012). In this case, a radical-right Swedish organization distributed homophobic leaflets on school premises, alleging the conspiracy of ‘gay propagandists’ in the Swedish educational system, categorizing homosexual relations as perverted, vicious and threatening to children. The organization’s members were prosecuted before Swedish courts for incitement to homophobic hatred. The Court shed light on hate speech in terms broader than its traditional focus on xenophobic utterances and incorporated homophobic speech within the same proportionality test administered in its previous hate speech judgements. ⁸⁰ The ECtHR acknowledged that homophobic speech should be treated in the same way as racist speech, leaving a margin of appreciation for the State in deducing the negative effect on society. Importantly, in relation to the nexus between speech and harm, the Court held that it was not necessary for the speech ‘to directly recommend individuals to commit hateful acts’ ⁸¹ since attacks on persons can be committed by ‘insulting, holding up to ridicule or slandering specific groups of the population’ and that speech used in an irresponsible manner may not be worthy of protection’. ⁸² The ECtHR drew the correlation between hate speech and the negative effects it can have on victims, demonstrating that it is not merely an abstract notion but one with potential to cause harm. ⁸³ As such, in this case, the Court fostered the vision of homophobic hate speech as excluded from the protection of freedom of expression whilst simultaneously extrapolating on its position vis-à-vis the conceptualization of harm in the ambit of hate speech. However, as underlined in the concurring opinion of Judge Yudkivska, joined by Judge Villiger, the Court missed an opportunity to ‘consolidate an approach to hate speech’ against homosexuals. ⁸⁴ In their view, it happened because the majority affirmed that statements which do not ‘directly recommend individuals to commit hateful acts’ constitute ‘serious and prejudicial allegations’ rather than hate speech. ⁸⁵

It was not until Lilliendahl v Iceland (2020), however, that the ECtHR set out the clear-cut question of whether the impugned speech constitutes hate speech. More particularly, for the first time in its ‘hate speech’ jurisprudence, it posed the following question:

Did the applicant’s comments amount to ‘hate speech’ within the meaning of the Court’s case-law? ⁸⁶

In this case, a municipal council in Iceland approved a proposal to strengthen education and counselling in schools concerning those who identify themselves as lesbian, gay, bisexual or transgender. The decision was reported in the news and led to substantial public discussion. The applicant wrote comments below an online news article referring to, for example, ‘sexual deviation’ and used the word ‘disgusting’ when referring the proposal. He was fined approximately €800. The ECtHR found no violation of Article 10 ECHR as it considered his comments to amount to hate speech. Again, no call for violence was made but the Court followed the approach of Vejdeland by finding that such prejudicial comments were harmful. It reminded us that:

The Court has not only put speech which explicitly calls for violence or other criminal acts, but has held that attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for allowing the authorities to favour combating prejudicial speech within the context of permitted restrictions on freedom of expression. ⁸⁷

Beizaras v Lithuania (2020) was bought, not by the ‘utterers’ of the speech, as could be observed in the majority of cases reaching the ECtHR in Strasbourg but, rather by the ‘victims’ of such speech. Here, the Court dealt with the posting and subsequent commentary of a same-sex kiss on Facebook. ⁸⁸ More particularly, two men posted a public photograph of themselves kissing on Facebook. It attracted around eight-hundred comments, most of which were hateful (to give but one example from the materials at the Court, ‘Scum!!!!!! Into the gas chamber with the pair of them’). The national authorities did not proceed with charging the users of making hateful comments, referring to the couple’s ‘eccentric behaviour’ being provocative and that the case would be a ‘waste of time and resources’. The ECtHR found a violation of Article 13 ECHR and Article 8 ECHR in conjunction with Article 14 ECHR. The Court held that the comments ‘affected the applicants’ psychological well-being and dignity, thus falling within the sphere of their private life’. ⁸⁹ The Court also noted that hate speech and incitement to violence are illegal.

To sum up, what can be loosely conceptualized as hate speech and, by extension homophobic speech by the ECtHR, does not fit into the protection provided for by Article 10 ECHR.

Soft law of the council of Europe

As well as the ECtHR itself, the Council of Europe’s other institutions, namely the Committee of Ministers and the Parliamentary Assembly have adopted documents that seek to tackle homophobia. In particular, the Parliamentary Assembly passed a Resolution in 2012, in which it unequivocally condemned homophobia and transphobia. ⁹⁰ This, inter alia, calls Member States to condemn hate speech and discriminatory statements and effectively protect LGBT persons from such statements as well as adopt and implement anti-discrimination legislation which includes sexual orientation and gender identity among the prohibited grounds for discrimination, alongside sanctioning infringements. In the Recommendation of the Committee of Ministers (2010), ⁹¹ Member States were called to examine existing legislative and other measures, keep them under review, and collect and analyse relevant data, in order to monitor and redress any direct or indirect discrimination on grounds of sexual orientation or gender identity. The Recommendation covered a wide variety of frameworks including hate speech, hate crime, freedom(s) of association, expression and family life, housing, education and employment. Regrettably, none of the Council of Europe institutions, such as the Committee of Ministers has issued an immediate resolution or recommendation in relation to the LGBT-free zones in Poland, referred to at the beginning of this article. This is essentially ignorant of the 2010 Recommendation of the Committee of Ministers on measures to combat discrimination on grounds of sexual orientation or gender identity.

Targeting homophobia in primary and secondary EU law

Article 21 of the EU Charter of Fundamental Rights (CFR) ⁹² explicitly prohibits discrimination based on sexual orientation (but not gender identity). Homophobia is undoubtedly emblematic for discrimination against sexual orientation. Running against the core of human dignity, it should be viewed as incompatible with the foundational values of EU law and contrary to the emancipating prospects of EU sexual citizenship. ⁹³

On 17 May 2010, on the occasion of the International Day Against Homophobia, the Presidents of the European Council and of the European Parliament, and the Vice President of the European Commission for Justice, Fundamental Rights and Citizenship, jointly issued messages condemning homophobia. ⁹⁴

Furthermore, on 24 May 2012, the European Parliament issued a Resolution on the Fight against Homophobia in Europe. ⁹⁵ The focus of the discussion about LGBT rights in EU law has traditionally centred on post-employment discrimination, such as working benefits and pension rights. ⁹⁶ Further, the marital regime for same-sex couples has gradually evolved, linked to both post-Amsterdam ⁹⁷ equality developments, and the growing governance of EU citizenship. ⁹⁸ In the 2000s, the EU adopted secondary legislation targeting, inter alia, harassment, sexual harassment and victimization in employment on the grounds of race; religion, sexual orientation, age and disability; and gender equality. ⁹⁹

Likewise, relevant to this subject is the response of the EU to a pressing issue faced in Poland and the State and Church’s wish to steer clear of LGBT ‘ideology’, mentioned at the beginning of this article. As noted by Bucholc, the term ‘LGBT-Free Zones’ is ‘rather imprecisely used’ ¹⁰⁰ to refer to two aspects. The first is a sticker sold with a weekly newspaper in July 2019 with the caption ‘LGBT Free Zone’ replaced later with ‘LGBT-Ideology Free Zone’. Their sale was stopped by a court order. The second is a set of resolutions adopted since March 2019 by local governments on a set of variants emanating from opposition to LGBT ideology.

In 2019, the European Parliament adopted a resolution on public discrimination and hate speech against LGBTI people, including LGBTI free zones. Amongst others, the 2019 resolution condemned hate speech by public authorities and elected officials against hate speech and the declarations of LGBT-free zones in Poland. ¹⁰¹ Furthermore, a non-legal yet efficient measure was implemented by the European Commission which rejected EU funding to six Polish cities because of their adoption of LGBTI-free zones. ¹⁰² Moreover, the Polish issue could not be viewed outside the current discussions going on at an EU level regarding the deteriorating situation of the rule of law in the country. The relevant provision in primary in EU law here is Article 7 of the TEU which can be triggered (and has been by the Commission) if, amongst other institutions, the Commission determines that there is a clear risk of a serious breach of the values provided for in Article 2 TEU (such as human dignity, freedom, equality, the rule of law, respect for human rights and non-discrimination). Whilst the Council continues to fail upholding Article 7 TEU and as a result no sanctioning mechanisms can be imposed on Poland, the European Commission has used another of its tools, namely that of the infringement procedure for other issues such as the independence of judges. ¹⁰³ Here it must be noted that, in the ambit of infringement procedures, had a more robust legal framework existed pertaining to homophobia and homophobic speech, the job of the Commission in determining possible infringements of EU law (including the non-transposition of directive provisions) would be easier.

The position of the EU on homophobia as manifested in, for example, homophobic speech and the construction of zones free from ‘LGBT ideology’ is not convincing enough. Whilst the Parliament has issued the above resolutions and whilst funding has been cut, the limited response to the issue (and to homophobia and homophobic speech more generally) lies in the fact that sexual orientation and gender identity are not adequately protected when compared to the protected characteristic of race. In relation to the former, Directive 2000/78/EC (the aforementioned FED, or Framework Equality Directive) establishing a general framework for equal treatment in employment and occupation prohibits discrimination on the grounds of, inter alia, sexual orientation (but not gender identity) in the spheres of employment, trade unions and vocational training. In relation to the latter, Directive 2000/43/EC (RED, or Racial Equality Directive) implements the principle of equal treatment between persons irrespective of racial or ethnic origin. The scope of this directive is broader, going beyond the employment framework, trade unions and vocational training to social advantages, education and access to goods and services.

The same hierarchy of protection is also witnessed in the EU’s Framework Decision on Racism and Xenophobia. In 2008, the EU Council passed the Framework Decision, which constitutes the closest document the EU has to tackling hate speech (and hate crimes). In relation to hate speech, Article 1(a) of the Decision prescribes that each member state shall take the measures necessary to ensure that the following conduct is punishable:

[P]ublic incitement to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin.

In 2013, the European Parliament recommended that the Decision should include grounds of sexual orientation and gender identity. ¹⁰⁴ The European Parliament communicated its general dissatisfaction in relation to the EU’s approach to homophobia and passed a resolution concerning homophobia and discrimination on the grounds of sexual orientation and gender identity. Therein, the Parliament argued that the EU currently lacks a comprehensive policy to protect the fundamental rights of LGBTI people. For this reason, it called on the Commission, Member States and relevant agencies to work jointly on a comprehensive multiannual policy to protect the fundamental rights of LGBTI persons. ¹⁰⁵ In her 2020 State of the Union address, the President of the European Commission noted that the Commission will extend the list of EU-level crimes to all forms of hate crime and hate speech, whether based on race, religion, gender or sexuality. ¹⁰⁶ However, the President did also mention that the Commission would be working to strengthen racial equality laws, ¹⁰⁷ without recognizing the imbalance and gaps in equality laws created for other protected characteristics, which are in urgent need of reconfiguration at the very least so as to meet the same level of protection provided to race. Either way, since 2000, the state of affairs is that homophobia was incorporated only in the employment framework whilst it was completely disregarded in the 2008 hate speech and hate crime developments.

Case-law of the CJEU