HUMAN RIGHTS IN THE EUROPEAN CONSTITUTIONAL ORDER

The adoption of the Charter is often referred to as a “turning point” for the protection of fundamental human rights, including LGBTQ+ rights. However, its limited applicability resulted in the Charter having the potential yet lacking sufficient real-life application, to address the struggles the LGBTQ+ minority has to face every day. In areas outside the scope of implementing EU law, the provisions of the Charter do not hold sway over Member States. Moreover, it should be noted that the EU Charter and the Treaties primarily bind Member States, not private individuals, which distinguishes them from the European Convention of Human Rights issued by the Council of Europe. When these areas impact the fundamental human rights of individuals, those affected must seek protection under the provisions of other legal instruments, such as national constitutions and/or the European Convention on Human Rights. 23 3. Protection of LGBTQ+ Minority based on Secondary Legislation The area where the LGBTQ+ minority receives higher protection at the EU level is employment, where the European legislation acknowledges sexual orientation as grounds for discrimination. 24 The cornerstone of protection against discrimination is Directive 2000/78/EC, known as the Employment Equality Directive , which imposes on Member States the obligation to adopt anti-discrimination legislation in the workplace. This directive is used as an instrument that puts the Member States under obligation to set in motion a minimum standard of protection against homophobia in matters of employment. 25 These provisions protect individuals from unequal treatment based on their sexual orientation, although the term is not clearly defined in the directive. However, they do not extend protections to gender identity, gender expression, or sexual characteristics. Therefore, those individuals, if met with discrimination on these specific grounds, have to rely on the jurisprudence of the Court of Justice of the EU 26 ( hereinafter referred to as “CJEU” ). Fortunately, the CJEU has construed discrimination based on sex to encompass individuals who have undergone gender reassignment, thereby indicating that all EU legislation prohibiting sex discrimination could potentially be applicable to transgender individuals. 27 International Organizations [online]. 2023 [cit. 2024-02-18]. Available at: https://brill.com/display/ book/9789004687264/BP000014.xml. 23 MURAVIOV, Viktor and SVIATUN, Olena. Protection of Human Rights in the European Union [online]. 2016, p. 8 [cit. 2024-02-20]. Available at: 10.1007/978-94-017-7465-9_10. 24 SANCHEZ-COLOMER, Lucia Zurro. IS THE EU DOING ENOUGH TO PROTECT LGBTI FUNDAMENTAL RIGHTS ? Eyes on Europe [online]. 2020 [cit. 2024-02-14]. Available at: https:// www.eyes-on-europe.eu/is-the-eu-doing-enough-to-protect-lgbti-fundamental-rights/. 25 BELAVUSAU, Uladzislau. Legislative and Judicial Politics of LGBT Rights in the European Union. In: SSRN Electronic Journal [online]. 2020, p. 5 [cit. 2024-08-14]. Available at: https://ssrn.com/ abstract=3704924. 26 Ibid. 27 Court of Justice of the European Union. P. v. S. and Cornwall County Council (Case C-13/94) [online]. Judgment of 30 April 1996 [cit. 2024-02-14]. Available at: https://eur-lex.europa.eu/legal-content/EN/ TXT/?uri=CELEX:61994CJ0013.

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