Freedom of movement of same-sex families: Addressing current discrimination and gaps Silvan Agius Seminar on free movement of same-sex families European Parliament, 3 May 2011

Same-sex families’ legal recognition in 2004 The legal situation when the Freedom of Movement Directive was adopted 7 years ago. Marriage equality 2 Registered partnership 8 No recognition 19

Same-sex families’ legal recognition in 2011 The legal situation today. Marriage equality 7 Registered partnership 12 No recognition 12

Freedom of Movement?

Freedom of movement of same-sex couples FRA Report 2010: Spouses & partners 8 Partners only 7 No recognition 8 Ban on recognition 3 * France unclear By comparison, this map would be entirely dark blue for different-sex spouses.

Current recognition problems Non-recognition of ‘gay marriage’ by various Member States There is no such thing as ‘gay marriage’. All marriages are contracted under the same marriage laws. Therefore, non-recognition of marriages of same-sex partners = direct discrimination (sexual orientation). Registered partnership institutions vary across the EU Most registered partnership laws do not have a mechanism to recognise foreign registered partnerships There is no European harmonisation framework Bulgaria, Romania and Estonia ban recognition in their domestic law.

(i) Partners

Discriminatory non-recognition of civil status Many Member States do not recognise same-sex spouses’ civil status, including many Member States were registered partnerships have been introduced. Many Member States do not recognise same-sex registered partnerships, including other Member States were registered partnerships have been introduced. Comparator important in discrimination cases. No such questions are raised about the civil status of different-sex spouses.

Discriminatory non-issuance of civil status In Poland and Estonia (and maybe other countries too) the public registry does not issue civil status documents to single adults who intend to enter into a marriage or registered partners with a person of their same sex in another EU Member State. See PETI Petition N° 632/2008

Discriminatory inheritance tax 60% inheritance tax rate as registered partners were considered unrelated

(ii) Children

Discriminatory non-recognition of children LIBE Committee: “What about children of same sex couples?” Cyprus Government: “The Cyprus legislation doesn´t recognise same sex partners as «other» family members of the union citizen” Questionnaire towards Report of 24 March 2009 on the application of Directive 2004/38/EC Two adopted children of same-sex spouses resident in Brussels (one Greek national) were not recognised in Greece and were rendered de facto orphans. Court reasoning: “unmarried people are not allowed to adopt in Greece” “Greek society is not yet ready to accept a child with two fathers” 60% inheritance tax rate as registered partners were considered unrelated

Impact of parents’ non-recognition Kaisa (Finnish) and Claire (French) officially registered their PACS in France in 2004 and have two children. Claire is not recognised as a second parent in France and she cannot adopt her children in Finland either. Outcome: Claire is only a legal guardian with very limited rights. As a result, their children cannot: (1) inheriting property and belongings from their second parent and her family; (2) using her surname; (3) having French citizenship and a French passport like her. See PETI Petition No. 0283-11

What role for the EU?

Sexual orientation discrimination is prohibited Extract from 2010 Report on the Application of the EU Charter of Fundamental Rights (pg. 44)

Addressing the discrimination The EU needs to ensure legal certainty and portability of civil status End indirect Member States’ bans on marriages/ registration or adoption in other Member States Respect of EU legislation: Art 10 and Art 19 TFEU and Art 21 of the Charter with regard to sexual orientation Parity before the law for different-sex and same-sex couples Ensure the best interest of children regardless of the sexual orientation of parents

Commissioner for Fundamental Rights “Let me stress this. If you live in a legally-recognised same-sex partnership, or marriage, in country A, you have the right – and this is a fundamental right – to take this status and that of your partner to country B. If not, it is a violation of EU law, so there is no discussion about this. This is absolutely clear, and we do not have to hesitate on this.” Viviane Reding Discrimination of same-sex married or in civil-partnership couples (debate) 7 September 2010, European Parliament [Strasbourg]

Thank you silvan@ilga-europe.org