Bamforth, Nicholas --- "Discrimination on the grounds of sexual orientation and gender identity" [2016] ELECD 1429; in Bogg, Alan; Costello, Cathryn; Davies, C.L. A. (eds), "Research Handbook on EU Labour Law" (Edward Elgar Publishing, 2016) 495

Book Title: Research Handbook on EU Labour Law

Editor(s): Bogg, Alan; Costello, Cathryn; Davies, C.L. A.

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783471119

Section: Chapter 20

Section Title: Discrimination on the grounds of sexual orientation and gender identity

Author(s): Bamforth, Nicholas

Number of pages: 32

Abstract/Description:

Developments in the treatment of sexual orientation and gender identity since the early 1990s illustrate some important broader themes within European Union law during the period concerned. These include treaty-based and legislative expansion in the scope of non-discrimination protections; debate as to the role of the judiciary in interpreting those protections; uncertainties prompted by the overlapping jurisdictions of the Court of Justice (CJEU) and the European Court of Human Rights (ECtHR); and varying national-level responses to relevant EU and/or European Convention prescriptions. Viewed in broad terms, such developments might also appear to reflect a move from EU-level legislative intervention couched in terms of non-discrimination (and, more narrowly, of impermissible discrimination understood as a hindrance to the market) towards a conception of EU law and the European Convention on Human Rights as collaborators – within the limits now set by Opinion 2/13– in protecting or encouraging Member States to protect the human rights of sexual minorities in a range of circumstances beyond the workplace. It is perhaps unsurprising that Morten Kjaerum, writing as Director of the EU’s Fundamental Rights Agency, has suggested that ‘Developments over the past years testify to the increasing awareness of the rights of lesbian, gay, bisexual and transgender (LGBT) persons at European Union… level’. This chapter begins with an overview of the legal architecture within which protections against sexual orientation and gender identity discrimination operate at EU level, an area in which the Convention plays a significant overlapping role.