Author: Hannah Wind Date: Monday, 2 September 2024
Location: Germany
Source: European Union Flag and LGBTQ+ Pride Flag (Retrieved from Euractiv - https://www.euractiv.com/section/non-discrimination/news/eu-court-asks-bulgaria-to-give-passport-to-baby-of-lesbian-couple/)
SUMMARY
In August 2024, Bulgaria officially published a new law against LGBTQ+ ‘Propaganda.’ This change to the country’s education code introduces a wide prohibition of promotion and incitement of LGBTQ+ views and ideas in schools. Details are neither specified within the legal text nor in any other way known to the public. Critics assert that this law endangers children, fostering an environment where bullying LGBTQ+ members is justified by the law. Such an environment also infringes upon human rights and challenges the fundamental ideals of the European Union, which Bulgaria is a member of.
BACKGROUND
At the beginning of August 2024, following earlier released policies by Russia and Hungary, the Bulgarian government officially published a new law prohibiting “LGBTQ+ Propaganda” in schools. Essentially, the law entails an amendment to the Bulgarian education code, stipulating that “promotion, propaganda, or incitement” of “LGBTQ+ ideas or views” are prohibited in schools. Details about what is included in such ‘ideas or views’ are, however, neither outlined in the legal text nor otherwise known to the public. This has sparked several protests in Bulgaria and at the European Union (EU) level.
What is LGBTQ+?
For many, LGBTQ+ is still just a combination of letters that refers, in one way or another, to the ‘gay community.’ The true meaning behind it is, however, at least amongst the older generations, not widely spread.
LGBTQ stands for “lesbian, gay, bisexual, transgender, queer/questioning,” hence for those who do not identify as ‘heterosexual’ or ‘straight.’ The + as such aims to include all those who cannot fit their identity into these categories, that is, people who are either non-cisgender or have a different orientation that neither fits under the umbrella term of ‘heterosexual’ nor that of the acronym LGBTQ.
The EU, which Bulgaria is a member of, has proclaimed ‘equality’ to be one of its core values and officially recognized its power to act in cases of discrimination based on sexual orientation in 1999. This view is also endorsed in the two fundamental treaties of the EU, the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU).
The TEU enshrines the bindingness of the Charter of Fundamental Rights of the European Union, which, under Article 21, prohibits member states of the EU from discriminating on grounds of ‘sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.’ Reinforcing this general prohibition, the TFEU allows for the Council and the EU Parliament to pass legislation that combats discrimination based on any of the above grounds.
The standing of the EU is, thus, clearly pro-LGBTQ+ and condemns any behavior against these principles, as several examples have shown in the past decades. What does this mean for Bulgaria?
Clash of EU Law and the New Bulgarian Law
To understand how Bulgaria violates its obligations under EU law, which it must adhere to as it is a member state of the Union, it is important to bear in mind the fundamental values of the EU, stipulated in Article 2 TEU: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”
While the European Commission, under the leadership of European Commissioner for Equality Helen Dalli, is still investigating if and to what extent Bulgaria’s new law might infringe upon its obligations under EU Law, several conclusions will likely be made:
Conflict with the Charter of Fundamental Rights
Firstly, the EU will likely find that the new Bulgarian law conflicts with the Charter of Fundamental Rights. As previously mentioned, the Charter contains a provision that EU member states have a positive obligation to implement the right to non-discrimination on various grounds, including sexual orientation.
In contrast to this duty, the new Bulgarian law fosters an environment in which members of the LGBTQ+ community are discriminated against. Establishing that ‘promotion and incitement’ of ideas of the ‘non-traditional sexual orientation’ are prohibited in schools fundamentally contravenes the European aim to create a discrimination-free environment. It erodes the right of individuals to non-discrimination and thereby attacks the core values of the Union.
Conflict with Human Rights Standards
In addition to the conflicts with the Charter of Fundamental Rights, conflicts with the European Convention on Human Rights (ECHR), signed by all EU member states, are likely to be found. Amongst other things, the ECHR includes the right to freedom of expression in private life. The new Bulgarian law, however, could be found to limit the exercise of such rights as it bears the potential to stigmatize the identities of members of the LGBTQ+ community and actively prohibit them from expressing themselves, particularly if they still go to school.
Having ratified the ECHR in 1992, Bulgaria must implement the rights contained in the Convention. If it fails to do so or actively prevents individuals from enjoying these rights, they can seek recourse at the European Court of Human Rights in Strasbourg, France, thereby instigating legal proceedings against the state on a private level.
Conflict with the LGBTIQ Equality Strategy
Finally, the new law defeats the European Commission’s commitment to build a Union of Equality. Upon a survey in 2019, which found that 43% of LGBTQ+ members in the EU feel discriminated against, thereby reflecting increasing trends of discrimination as compared to 37% in 2012, the Commission came up with a strategy to better protect LGBTQ+ people’s rights. Essentially, the strategy “sets out a series of measures to step up action, to integrate LGBTIQ equality in all policy areas and to help lift the voices of LGBTIQ minorities. It aims at bringing together Member States and actors at all levels in a common endeavor to address LGBTIQ discrimination more effectively by 2025.”
However, by implementing the new law, the Bulgarian government fosters the opposite of what the Commission wants to do: it silences members of the LGBTQ+ community. It strips LGBTQ+ people of their right to equality. It discriminates against those who identify as LGBTQ+.
The EU’s Reactions Regarding the New Law
If such allegations prove true, the EU can extend its response from diplomatic pressure to legal scrutiny. This is what parties like Renew Europe already request now, especially considering how the Union has reacted to similar acts by Hungary and Poland in the past.
Regarding Hungary, where the government passed legislation prohibiting content depicting or promoting homosexuality or trans-identity in public spaces in 2021, the Commission has successfully launched infringement proceedings. A similar case could be made against Bulgaria if the Commission considers that the country fails to fulfil its obligations under the fundamental EU treaties by releasing and implementing the new anti-LGBTQ+ propaganda law.
Infringement Proceedings are about enforcing the law. As outlined by Article 258 TFEU, the mechanism allows the European Commission to sue a member state. Likewise, Article 259 TFEU permits other member states to instigate infringement proceedings.
To start the process, the Commission must first give said member state a reasoned opinion as to why it believes that the member state has failed to fulfil its obligations under the treaties, and it must also give the member state the opportunity to submit its own observations regarding the issue. If the state concerned does not comply with the Commission’s opinion within a specific period of time, the Commission may bring the matter before the European Court of Justice.
In the case of Bulgaria, it is, thus, still a long way to go until the Commission would have a chance to initiate Court proceedings and the country still has the chance to change its course of action. What is, however, clear, is that the EU does not support the new law and will act accordingly if Bulgaria does not row back.
REFERENCES
Defining LGBTQ+. (2023, August 25). The Center. https://gaycenter.org/community/lgbtq/
European Commission. (2022, May 20). European Commission refers Hungary to the Court of Justice of the European Union for violating LGBTIQ rights. https://ec.europa.eu/commission/presscorner/detail/en/IP_22_2689
European Commission. (2023). LGBTIQ Equality Strategy 2020-2025. https://commission.europa.eu/strategy-and-policy/policies/justice-and-fundamental-rights/combatting-discrimination/lesbian-gay-bi-trans-and-intersex-equality/lgbtiq-equality-strategy-2020-2025_en
European Court of Human Rights (2014). European Convention on Human Rights. https://www.legal-tools.org/doc/8267cb/pdf/
EUR-Lex. (2016). Consolidated version of the Treaty on European Union – Article 2. https://eur-lex.europa.eu/eli/treaty/teu_2012/art_2/oj
EUR-Lex. (2016). Consolidated version of the Treaty on European Union - Article 10. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12016E010
EUR-Lex. (2008). Consolidated version of the Treaty on the Functioning of the European Union - Article 258. https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A12008E258
EUR-Lex. (2016). Consolidated version of the Treaty on the Functioning of the European Union - Article 259. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12016E259
European Parliament (2024). The Protection of Article 2 TEU Values in the EU. https://www.europarl.europa.eu/ftu/pdf/en/FTU_4.1.2.pdf
Jochecova, K., Wax, E., and Lau, S. (2024, August 16). Bulgaria’s new anti-LGBTQ+ law is official. Opponents beg EU to take action. Politico. https://www.politico.eu/article/bulgaria-anti-lgbtq-law-ban-propaganda-school-ruman-rudev/
Renew Europe. (2021, July 15). LGBTIQ rights: Renew Europe welcomes legal action against Hungarian and Polish governments. https://www.reneweuropegroup.eu/news/2021-07-15/lgbtiq-rights-renew-europe-welcomes-legal-action-against-hungarian-and-polish-governments
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