France condemned again
“A major decision that could be revolutionary if properly implemented by the executive” – Magali Lafourcade, Secretary General of the French National Consultative Commission for Human Rights (CNCDH)
On 17 April 2023, the European Committee of Social Rights (ECSR) publicly announced its decision on the merits of the case of European Disability Forum (EDF) and Inclusion Europe v. France1. The Committee has once again condemned France for neglecting the rights of people with disabilities and thus violating the rights set out in the European Social Charter. For nearly five years, several French associations fought to have France condemned and to advance their fight for effective social rights, freedom, and dignity for people with disabilities. Although the decisions of the ECSR are not binding, this condemnation puts pressure on the French government. It pushes the signatory States to build a more inclusive society that respects the rights of everyone.
Violations of the social rights of people with disabilities are not isolated incidents, but a systemic problem. Whatever the nature or degree of the disability, the people concerned are victims of ongoing discrimination and social exclusion and face major obstacles preventing them from gaining access to adequate education, to the job market and to a decent health and insurance system. Many stereotypes persist in society, creating an imbalance of power and leading to regular violations of their human rights.
The issue of protecting people with disabilities is gradually coming back to the forefront in recent years, thanks to the involvement of various civil society players fighting to claim the place of these people and denounce the overall lack of appropriate policies.
As a result, a process of considering and modifying public policies is developing step by step in Europe, but given the urgency and importance of this issue, more is needed.
After recently deconjugalising the disabled adults’ allowance (AAH) with the aim of guaranteeing greater autonomy for women with disabilities2, France hosted a national disability conference (CNH) on 26 April. Provided for every three years by a law passed on 11 February 2005, this conference is chaired by the President of the Republic in order to mobilise all stakeholders in the field of disability and initiate a new dynamic to address the issues raised. Many NGOs boycotted the CNH and condemned the way it was run. Among them, Unapei stated that it had contributed to the CNH’s preparatory working groups, but that none of its proposals had been acted upon3. The government justifies its inaction by claiming budgetary constraints. In fact, the progress made in recent years has been limited and even disconnected from the day-to-day realities of the people concerned. This inconsideration and ignorance of the realities of people with disabilities is similarly blamed on the French government’s failure to take account of the AAH, which remains below the national poverty line even though the material needs of people with disabilities are particularly high. Similarly, although measures have been taken following previous calls to order (autism plans put in place following the 2004 ECSR decision4), the French government’s efforts seem modest and the measures incomplete.
As in the rest of Europe, there is a growing gap between theory and practice. Although more and more regulations govern the specific situations of people with disabilities, they are not systematically applied. In Portugal, a change in the law has eased the rules on guardianship, but prejudice still prevails. As a result of this societal perception, legal capacity is often withdrawn from people with disabilities because they are considered less capable. In Germany, a new law planned for 2023 will give people with disabilities the power to refuse a guardian and have their own decisions prevail. In practice, however, lawyers and guardians are given a great deal of leeway, which hampers the effectiveness of this rule.
The implementation of new measures and European initiatives reveal some progress – at least in recognising the difficulties faced by people with disabilities – but the statistics show that this is far from enough. In Europe, only 51.3% of disabled people have a job, compared with 75.6% of non-disabled people. For women and young disabled people, the figure is even lower: 49% for the former and 47.4% for the latter. In terms of health, the WHO states that health establishments do not make the necessary accessibility arrangements for people with disabilities, making access up to six times more difficult for them. These inequalities result from the unfair conditions faced by people with disabilities, including poverty and barriers within the healthcare system.
The fight for a paradigm shift
These practices are all the more reasons for civil society players to speak out and make their demands, raising their voices in the face of the passivity of governments and the disregard for real experiences fuelled by the constant stigmatisation of people with disabilities.
The ability of civil society organisations to influence public debate is undeniable and of great use in improving the effectiveness of the social rights of minority groups. Civil society players have access to a wide variety of tools tailored to the specific nature of their claims, enabling them to make their voices heard on the public stage by a government that is often not very receptive to the issues they address. Associations specialising in defence of people with disabilities regularly make their voices heard through demonstrations, public actions, annual reports, petitions, and the collective complaints mechanism set up by the ECSR.
Take the example of the international organisation the European Disability Forum (EDF). It has a range of tools to monitor EU initiatives and make recommendations to advance the rights of people with disabilities. As well as lobbying national and international bodies – notably through collective complaints – the NGO attends conferences and seminars within the institutions to inform the public about the discussions underway. It also publishes statements welcoming or criticising recent initiatives and produces specific complaints.
For example, EDF took part in the protest, supported by many stakeholders, against the draft additional protocol to the Oviedo Convention. Since 2014, the Council of Europe and its Bioethics Committee have been considering the regulation of involuntary psychiatric treatment and placement, which will become internationally and legally binding if adopted. Organisations representing psychiatric users, survivors and people with disabilities, as well as United Nations experts and internal bodies of the Council of Europe, are opposed to this protocol in the name of protecting the human rights of the people concerned. This long struggle has not been in vain: in May 2022, the Committee of Ministers of the Council of Europe decided to take into account civil society complaints and suspend the adoption of the project until the end of 2024. The announcement of this postponement is a victory for the NGOs fighting against this regulation, since they consider the forced treatment it governs contrary to the human rights of people with disabilities. While the ultimate aim would be to repeal the rule altogether, the NGOs see this postponement as a sign that they have been heard, whereas they had the impression that they were not being listened to.
The role of civil society actors is essential in the fight for minority rights. NGOs’ grassroots work and their recognition in the national and international sphere enable them to make the voices of people directly affected by state measures be heard, but they are rarely listened to. Defending the rights of people with disabilities involves a notably silent community that is excluded from the public arena. Through awareness-raising campaigns, civil society players communicate the realities experienced by these people, both to the rest of society and to the public authorities. In the face of government scorn, NGOs are putting forward recommendations rooted in the reality of the individuals concerned and communicating on sensitive issues. For example, the issue of consent in medical procedures and the importance of individual autonomy are particularly sensitive points, in addition to the fight against discrimination, exclusion and the invisibility of people with disabilities.
Ambivalent responses from the Council of Europe
Thanks to the mobilisation of Unapei, APF France handicap, Unafam and FNATH in the face of the French government’s failure to meet its obligations under the European Social Charter, the Council of Europe has been able to observe the lack of progress and the violation of the rights of people with disabilities, despite the promises made by the State. The Presidents of the associations behind the decision of 17 April 2023, proud to see the consequences of their work, see this support from the European Committee of Social Rights as “recognition of our actions and our determination to change things”5. This victory proving the benefit of non-state actors to society is not an unusual case, but part of a long line of decisions brought before the various institutions of the Council of Europe by multiple associations and non-governmental organisations contributing to the fight for the recognition of the human rights of people with disabilities.
The collective complaints procedure has often proved effective in convicting a government concerning the rights of minority communities. In the field of disability, France had already been condemned in 2013 for its policy on the integration of autistic children6. Still in the area of inclusion of people with disabilities in the education system, the Committee recognised that the right to inclusive education was not effective in the French Community of Belgium7. Finally, the lack of health protection for children with disabilities was recognised by the Committee when it condemned the Czech Republic in 20208.
In recent years, several countries have been condemned by the European Court of Human Rights (from now on the ECtHR) because of their management of the rights of people with disabilities. The ECtHR has defended sexual and reproductive rights9, the right to education and access to education10, and has condemned the automatic withdrawal of the right to vote from people under guardianship11. Although more and more cases concerning people with disabilities are being brought before the ECtHR, the responses are not always convincing. Many violations go unpunished because the judges consider the applications inadmissible. For example, the ECtHR has ruled that States are not obliged to integrate people with disabilities into ordinary schools (public or private)12 or to guarantee the unconditional right of people with mental disabilities to exercise their right to vote13. It seems that the Court only carries out analyses based on the personal situations of the individuals concerned and only punishes flagrant violations by States, thereby contributing to the trivialisation of discrimination against people with disabilities. Despite the Council of Europe’s intervention, the judges still seem too conformist, revealing an interpretation of human rights mainly oriented towards defending validist societal norms, thereby contributing to the marginalisation of disabled minorities. In his dissenting opinion in Caamano Valle v Spain, Judge Lemmens argued that there was a difference between legal and mental capacity. In so doing, he quotes the Human Rights Commissioner, who points out that excluding people with disabilities from exercising their right to vote deprives them of “any possibility of influencing the political process and shaping the policies and measures that directly affect their lives”. Amplifying the impact of his opinion, he added that this exclusion also deprives “society as a whole […] of a legislative body that [reflects] all its diversity”14.
However, while Helen Portal (advocacy officer for the NGO Inclusion Europe) recognises the value of such mechanisms, she regrets the slowness of the procedures and the lack of impact on governments, which do not seem to take the decisions of the European Committee of Social Rights seriously15. During the three months following the ECSR’s decision, before it was officially published, the applicant NGOs had no opportunity to discuss the matter with France. After that, there semmed to be no real exchanges to address the issues raised by the Committee. The Presidents of the associations behind the decision of 17 April 2023 cannot, therefore, be fully satisfied: the decision reveals the continuing failings of the French State regarding the human rights of people with disabilities, their relatives, and their families, and is not followed by any action plan. Despite recognising the facts they are accused of, the States tend to consider that the problems are old and no longer explain the Committee’s decisions. Given the time lag between the complaint’s lodging and the ECSR’s decision publication, “the government in question blames the previous government […] there is a lack of willingness to take these decisions seriously16. In fact, time is measured in years, and the lives of people with disabilities do not seem to have changed directly and effectively because of the decisions not to respect the rights guaranteed by the European Social Charter to the States of the Council of Europe. In its determination to boycott the CNH, Unapei explains that despite this decision by the Council of Europe, no responsibility has been taken by the government. In this sense, the CNH appears to be no more than a “new communication operation” on the part of the government17.
Conflict of rights: individual autonomy denied
The human rights of people with disabilities are regulated at a national and regional level, but also at the international level by the International Convention on the Rights of Persons with Disabilities (ICRPD). By ratifying this convention, countries undertake to guarantee and promote the whole exercise of the human rights and fundamental freedoms of persons with disabilities without discrimination. Adopted by the United Nations in 2006, it has to be said that a large number of people with disabilities still find themselves in situations that are unsuited to their needs and deprived of their most fundamental rights. In this case, article 12 of the CRPD, which guarantees the recognition of legal personality under conditions of equality, has been particularly undermined in recent years. This right protects people with psychosocial disabilities in the name of respect for their individual autonomy, and supports the prevalence of assisted decision-making and respect for the person’s choices and preferences rather than authorising third parties to give consent on their behalf. Going against the spirit of this international text, the draft additional protocol to the Oviedo Convention, mentioned above, demonstrates the conflict of laws between the obligations of States at regional and global levels and the failure to comply with United Nations regulations.
Similarly, people with intellectual and psychological disabilities are still legally “incapable” in France. These regulations illustrate the authorities’ contempt for people with disabilities and their infantilisation. As well as leading to further institutionalisation, these measures carry the risk of forced treatment. An increase in the use of psychiatric coercion has been noted in France: in violation of Article 25 of the CRPD, healthcare is provided without the free and informed consent of the people concerned. These legislative abuses are proof of the denial of the legal capacity of people with disabilities. Systemically, these people are considered incapable of discernment and consent since this automatic solution is less complicated for the authorities and healthcare structures to manage than would be an individualised and personal assessment of each patient, taking into account the level of disability and the experience of the users. This approach leads to social inequalities and contributes to a spiral of stigmatisation of people with disabilities, exacerbating feelings of distress and emotional and mental incomprehension among the individuals concerned.
According to Stéphanie Wooley, these issues are due to a blatant imbalance of power, which can only be remedied by a courageous and innovative political commitment, and using alternative solutions based on a social approach with human rights as its premise18. By highlighting individual violations, the Social Right Tracker contributes to this desire to point the finger at the current weaknesses of governments by letting the people concerned express themselves and advise them in an informed way. More data and information on changes will be collected through this platform, serving as a resource for NGOs. Indeed, this task remains a real challenge for NGOs such as those behind the collective complaint of 17 April 2023. In situations of discrimination, such as those against people with intellectual disabilities, the problem is that such acts are not systematically reported and recorded. Many people are unaware of what constitutes discrimination, while others do not even have access to justice due to legal incapacity and lack of the necessary knowledge. All these difficulties make it harder to collect data and hamper the fight for effective social rights for people with disabilities.
- ECSR, 17 April 2023, European Disability Forum (EDF) and Inclusion Europe v. France, Complaint no. 168/2018.
- Deconjugating AAH changes the way the allowance is calculated for recipients in couples. From October the 1st of 2023, it is calculated solely on the basis of the resources of the disabled person concerned, and no longer on the basis of the combined income of the two members of the couple. This means that the women concerned receive an individual allowance, independently of their spouse, thereby reducing their financial dependence. See the official information website: https://www.monparcourshandicap.gouv.fr.
- Unapei, Press release “Unapei will not take part in the National Disability Conference and calls on the government to assume its responsibilities by responding to the violations of fundamental rights denounced by the Council of Europe”, Paris, 26 April 2023. https://www.unapei.org/wp-content/uploads/2023/04/Communique-de-presse-Unapei-CNH-26.04.23-4.pdf.
- ECSR, 8 March 2004, Association internationale Autisme-Europe (AIAE) v. France, no. 13/2002.
- Pascale Ribes, President of APF France handicap; Sophie Crabette, Deputy Secretary General of FNATH; Marie-Jeanne Richard, President of Unafam; Luc Gateau, President of Unapei, “Réclamation collective – Dossier de presse”, 17 April 2023.
- ECSR, 11 September 2013, European Action for the Disabled (AEH) v France, no 81/2012.
- ECSR, 3 February 2021, Fédération internationale des Ligues des droits de l’homme (FIDH) and Inclusion Europe v. Belgium, no. 141/2017.
- ECSR, 23 November 2020, European Roma Rights Centre (ERRC) and Mental Disability Advocacy Centre (MDAC) v. Czech Republic, no. 157/2017.
- ECtHR, 22 November 2022, G.M. and others v. Republic of Moldova, no. 44394/15.
- See ECtHR, 30 January 2018, Enver Sahin v. Turkey, no. 23065/12; ECSR, 10 September 2020, G.L. v. Italy, no. 59751/15.
- ECtHR, 15 February 2022, Anatoliy Marinov v. Bulgaria, no. 26081/17.
- See ECtHR, 8 November 2016, Sanlisoy v. Turkey, no. 77023/12; ECtHR, 18 December 2018, Dupin v. France, no. 2282/17; ECtHR, 17 December 2020, Charles and others v. France, no. 3628/14.
- See ECtHR, 2 February 2021, Strobye and Rosenlind v. Denmark, no. 25802/18 and 27338/18; ECtHR, 11 May 2021, Caamaño Valle v. Spain, no. 43564/17.
- ECtHR, 11 May 2021, Caamaño Valle v. Spain, no. 43564/17, p.33.
- Interview by the Social Rights Tracker team with Helen Portal, advocacy officer for the NGO Inclusion Europe, 5 June 2023.
- Unapei, Press release, cited above.
- Wooley S. “It’s not care if it’s forced”. A paradigm shift underway through a human rights lens. L’Information psychiatrique 2020; 96 (1).
The ICJ and ECRE v. Greece: revival of the controversy
Essential clarifications on the applicability of the European Social Charter (from now on “the Charter”) to migrants in an irregular situation have been made by the European Committee of Social Rights (ECSR) in a decision on the merits, made public on 12 July 2021. This case, International Commission of Jurists (ICJ) and European Council on Refugees and Exiles (ECRE) v. Greece1 is the first collective complaint that deals in depth with the economic and social rights of asylum seekers and refugees. Greece was found to have violated the fundamental social rights of refugee and asylum-seeking children, both accompanied and unaccompanied migrant children.
The Committee proved its ambition by agreeing on immediate measures to ensure effective respect for Charter rights and avoid the risk of serious injury or harm. However, further analysis of the decision revives the debate on the variation in the protection afforded to migrants depending on their legal status. In this case, the applicability of the Charter was recognised to migrant children, in accordance with international law and on behalf of “the best interest of the child” principle. The Committee has reinforced the protection afforded by Article 3 of the European Convention on Human Rights and recognised the obligation of States to provide emergency assistance to the persons concerned.
The condemnation of Greece is motivated by the principle of dignity and the Charter’s objective of extending the application of the Charter’s main core in an exceptional manner. However, the Committee repeatedly recontextualizes its decision, insisting on the regularity of the migration in question. Citing previous case law, it seems to grant protection based on the individual situation of the persons concerned by the claim: in this case, children in a regular situation. The vulnerability of the persons involved is indeed of significant importance in the case, but the Committee recalls the limitation to which the applicability of the Charter is confronted. The right of access to adequate housing is thus inapplicable to migrants, even minors, in an irregular situation, but granted to asylum-seeking or refugee children.
This decision fuels the controversy about the confrontation between migration policy and the objective of fundamental rights. Increases in the European Union of 64% in irregular border crossings by 2022 and of 46% of the same year in asylum applications are creating a sense of urgency in Europe and have prompted EU leaders to put the migration issue back on top of the political agenda. Ministers of the Interior have expressed their willingness to increase the rate of return of “irregular migrants” to their countries of origin when they are refused asylum. While this ambition is legitimate pursuant to the effective right of Member States to control the entry into their territory, stay, and expulsion of migrants in an irregular situation, it is contrary to the objectives of the Charter and human rights. In light of this new threat, the importance of advocating for the extension of the applicability of the Charter to all migrants, regardless of their legal situation, is all the more necessary.
A double obstacle to overcome
The democratisation of such an extension meets certain obstacles. First, the Appendix to the Charter agrees on a double limitation of its scope. In its first paragraph, it is stated that the rights guaranteed in the Charter do not apply to nationals of states not party to the Charter, nor migrants in an irregular situation2. Despite the exceptions found in Articles 12§4 and 13§4, the scope of application never explicitly extends to migrants in an irregular situation. Moreover, in line with the Ministers of the Interior’s protest, the States Parties to the Charter reject this possibility. On 13 July 2011, the ECSR called on states on this issue, requesting national declarations to extend the Charter rights to all persons under their jurisdiction (which de facto includes migrants in an irregular situation regarding territorial jurisdiction). This attempt to expand the scope of the Charter by the will of the states has failed, as none of them has responded to this call so far3. This passivity shows the apparent refusal of states to extend the rights guaranteed by the Charter to migrants in an irregular situation4.
Evolution through interpretation: the example of Article 13
While the evolution of European law is marked by a desire to reduce the number of individuals likely to find themselves in an irregular situation on behalf of the principle of free movement, this legal openness seems to be restricted to nationals of European countries that are members of the EU or the Schengen area. In contrast, the law applicable to migrants in an irregular situation has developed along more repressive lines, neglecting their protection as individuals. Since the 2000s, the ECSR has gradually helped to link the Council of Europe’s vocation to protect the human person to issues affecting irregular migrants in the field of social rights. As its case law develops, the Committee must adapt to a less protective international environment to update the contextualisation of the values on which the European institutions are based. To do this, the Committee mobilises various interpretations of the Charter in order to respect the principle of human dignity and European solidarity. By mobilising the dynamic, teleological and systemic interpretation logic enshrined in international law, the Committee is taking an enterprising stance and developing step-by-step case law to apply certain Charter rights to migrants in an irregular situation. Indeed, any treaty must be interpreted “in the light of the object and purpose of the act containing it”5. The Charter must therefore protect social rights not in a theoretical and illusory way, but concretely and effectively.
As of 2004, the ECSR timidly stepped forward to extend the applicability of the Charter. In its conclusions XVII-11 of 2004, the limitations on the scope of application set out in the Appendix were confirmed. Still, the Committee qualified its statement by recalling the possibility of extending the application beyond the minimum requirement set out in the text. Moreover, the Committee warns governments that an extension is possible in certain specific cases in the name of the principle of non-discrimination between nationals and foreigners.
In the same year, the Committee admitted for the first time in its quasi-jurisprudence6 that Article 13 – guaranteeing social and medical assistance – was relevant to protect migrants. Unfortunately, the violation is not recognised in this case, setting an extremely high threshold of gravity. Despite a majority of the Committee being in favour of excluding this category of individuals, a desire for change is expressed by Mr Tekin Akillioglu in his dissenting opinion. Mr Akillioglu first recalled that the scope of the Charter specified in its Appendix is only a minimum basis that States are free to extend. Then he indicated that a principle of non-discrimination is in force. In an innovative interpretation of the Appendix, he then considers that when a State has decided to extend national legislation and practice within the scope of a right to foreigners, the principle of non-discrimination must be respected. According to these principles, a violation of Article 13 of the Charter by France should have been recognised.
In 2009, in DCI v. The Netherlands7, the Committee recognised a non-conventional responsibility of the signatory states of the Charter concerning the homelessness of people in an irregular situation. Still, it refused to admit a violation of Article 13.
More recently, the Committee overcame the obstacles to admit the applicability of Articles 13§1, §4 and 31§2 of the Charter to migrants in an irregular situation8. In this case, FEANTSA accused the Dutch government of failing to meet its obligation to provide accommodation to reduce and prevent homelessness, according to its commitment under the Charter. Referring to the intention of the Charter’s authors and its objective of protecting human rights, the Committee relied on dignity to extend in practice the applicability of social rights to all foreigners, offering them a right to emergency social and medical assistance.
A limited extension in practice
Fundamental rights are rooted in the person’s very humanity, regardless of their legal status. Logically, simply because of this human condition, an individual in an irregular situation should not be denied the guarantee of minimum rights. The Committee stated in 2015 that the social rights guaranteed by the Charter must be exercised to the fullest extent possible for refugees when they are directly related to the right to life and human dignity, in that they form part of a “non-derogable core” of rights9.
Since the FEANTSA case, the Committee has regularly recalled in its national reports that persons in an irregular situation must have a legally recognised right to the satisfaction of basic human material need in situations of emergency in order to cope with an urgent and serious state of need. In its 2021 Conclusions, the Committee makes this point several times, reminding many States of their obligation to ensure that this right is made effective also in practice.
The principle of solidarity, at the heart of the European project, should also be interpreted in such a way as to tend towards the abolition of discrimination between nationals and non-nationals in the name of the fundamental aspect of the rights protected by the texts. In matters of human rights, where the individual is at the heart of the reasoning of the institutions, an application that disregards the fundamental rights of individuals, given their irregular legal situation, appears contradictory.
Despite the Committee’s apparent willingness, its jurisprudence proves that the extension of social rights to migrants in an irregular situation remains limited to the person’s most fundamental rights. In all the decisions cited above, it is recalled that this extension remains exceptional and regulated by a threshold of gravity that is difficult to reach. Indeed, the obligation of States Parties to assist the persons concerned is limited to emergency needs: individuals must be in a situation where their life and human dignity are at risk of suffering substantial and irreparable damage.
The ICJ and ECRE v. Greece case shows that a distinction persists depending on the legal situation of migrants on European territory and that the vulnerability criterion used to decide on the applicability of social rights has its limits. These limits sometimes contradict a teleological interpretation of the Charter and the very foundation of human rights. It is helpful to recall the fundamental principle enshrined in Part I of the Charter, according to which “the Contracting Parties accept as the aim of their policy, to be pursued by all appropriate means, both national and international in character, the attainment of conditions in which the rights and principles [outlined in the Charter] may be effectively realised”. Indeed, this principle denotes a duty of international assistance and cooperation incumbent on each of the States Parties to the Charter. Following the primary objective of human rights treaties, these are of such importance that the States’ active participation must guarantee their. Migrants in an irregular situation are equally, if not more, subject to situations that make them extremely vulnerable. They should be protected on behalf of the much-talked-about human dignity.
Finally, the extension of the applicability of social rights to all migrants is limited by the mismatch between legal theory and the actual practice of decisions by State parties to the Charter. Although there have been developments regarding de jure equality between persons of immigrant background and nationals, this is insufficient if de facto equality is not ensured. For equality to be effective, additional action by States is expected to compensate for the different situation in which persons with a migrant background may find themselves compared to nationals. The Committee recalled in 2015 that States must expressly provide assistance services, or demonstrate that they are sufficiently prepared to provide such assistance. Indeed, the Committee often acknowledges in its national findings the mismatch between the right guaranteed to migrants and the situation of states. For example, the Committee concluded following the ICJ and ECRE v. Greece decision that its request for the Greek authorities to improve access to suitable reception centres for migrant minors on behalf of the right to shelter had not been implemented. After a request for a detailed report, the Committee concluded that the situation in Greece does not comply with Article 32§2 of the Charter, since the country’s situation did not guarantee either sufficient legal protection or conditions of respect for the dignity of persons.
Although an exegetical interpretation of the Charter and its Annex can be used to exclude migrants in an irregular situation from the protection granted by it, it is fundamentally contradictory with the very essence of human rights. To remedy this incoherence and make the guarantee of social rights effective, the intervention of civil society organisations in the quasi-legal arena appears not only promising but also very effective. It follows from this article that the scope of application of the Charter is gradually being extended to guarantee protection for people in an irregular situation. The collective complaints mechanism is a clear example of the importance of civil society organisations in the fight for more rights.
By Anna Diaz
- ECSR, 12 July 2021, International Commission of Jurists (ICJ) and European Council on Refugees and Exiles (ECRE) v Greece, No. 173/2018.
- European Treaty Series 163, European Social Charter (revised), Appendix, 3.V.1996.
- On the contrary, the Netherlands and Lithuania even explicitly declined the invitation.
- The discussion on the applicability of social rights to irregular migrants also takes place in the field of the ECHR. Although Article 1 of the ECHR requires States Parties to recognise the rights and freedoms set out in the Convention for all persons under their jurisdiction, there is a strong reluctance to do so. Recently, the Danish Parliament adopted a bill providing for the return of asylum seekers to a third country, without even admitting them to its territory in the event of a favourable response, thus contravening the ECHR. See Law L226/2021 adopted on 8 June 2021. The example of Denmark perfectly illustrates this increase in hostility towards irregular migrants and confirms the need for civil society organisations to be even more vigilant.
- Art.31§1 Vienna Convention on the Law of Treaties of 1968.
- ECSR, 4 March 2005, International Federation for Human Rights (FIDH) v. France, no. 14/2003.
- ECSR, 28 february 2010, Defence for Children International (DCI) v. Netherlands, no. 47/2008.
- ECSR, 2 July 2014, European Federation of National Associations Working with the Homeless (FEANTSA) v. The Netherlands, no. 86/2012.
- Conclusions 2015, Interpretative statement on the rights of refugees under the Charter.
Recognition of the right to self-determination: between decline and progress
In December 2022, Scottish MPs passed a law allowing gender self-determination. The British government unfortunately blocked this widely welcomed social advance. On 17 January 2023, London officially blocked the bill’s enactment by refusing to give royal assent – a formal but necessary step for the enactment of any legislation in the UK. In response to this resistance, the Scottish government has announced that it will respond by using Section 35 of the Scotland Act 1998, which would allow legislation to be passed without the King’s consent. These disparities are indicative of the remaining tensions in Europe over transidentity, transgender protection and gender reassignment in civil status. Like Scotland, Spain has recently changed its legislation in favour of the rights of transgender people, allowing gender self-determination. On 28 February 2023, the Spanish Parliament passed the law of “real and effective equality for trans people” – or “transgender law” – suggested by the Podemos party.
Gender self-determination makes it easier for people to have their gender legally recognised, notably by removing any medical diagnosis requirements. Transgender people will no longer need to prove their gender dysphoria, which is often a long and degrading process, to see the gender they identify with recognised from age 16. The laws aim to avoid the distress caused to trans people by the mismatch between their biological sex and the gender they identify, but also to fight discrimination and increase the protection of trans people. In the field of social rights, the new Spanish legislation sets out positive obligations for companies and public administrations to achieve effective equality for LGBTQIA+ people and disseminate good practice in terms of inclusion.
Germany is the latest country to follow this line of improvement in trans rights. On 25 March 2023 a parliamentarian revealed a recent agreement with Olaf Scholz’s government to simplify the administrative procedure for gender reassignment, allowing those affected to provide a simple self-declaration.
This sudden increase in the rights of people from the LGBTQIA+ community is more necessary than ever to address ordinary transphobia. However, this progress should not lead to illusions about the growing acceptance of the rights of transgender people. Despite some progress, the issue of trans-identity in Europe remains undeniably a divisive one.
Despite these recent improvements, only a handful of EU countries have enacted the principle of self-determination into national law. Denmark was a forerunner, adopting the principle as early as 2014, joined the following year by Ireland and Malta. Finally, Belgium amended its legislation in 2017 and Portugal and Luxembourg in 2018. There are some slim hopes for the Netherlands and Austria, where some steps towards reform seem to have been taken. France, on the other hand, seems to be more mixed. Currently, although medical treatment or an operation are no longer necessary criteria to modify gender in civil status, this remains subject to a court decision verifying the reality of gender dysphoria. For minors, the agreement of parents or guardians is required up to 18 – compared to 16 in Germany, for example.
Even more problematic is that Sweden, a pioneer in transgender rights, has reversed its position on transgender protection. In February 2022, the Swedish government announced the end of hormone therapy for minors, allowing the practice only for scientific research. In doing so, Sweden joined Finland’s position presented in 2020. Another regression was seen in Hungary, which adopted a series of anti-LGBT texts in December 2020. Gender is defined as only that of birth, so gender change is prohibited in civil status.
The lack of a European consensus on the issue of transidentity and the lack of common definitions of the corresponding notions explain the practical differences in European countries.
The European Union has not developed yet any specific directive on gender identity discrimination. Directive 2000/78/EC promotes equal treatment in employment and occupation, prohibiting discrimination on the grounds of sexual orientation. However, its prohibition stems from the case law of the ECtHR. In 1996, the Court included in the category of ‘sex’ discrimination against a person on the grounds that they intend to undergo or have undergone a sexual conversion. Then Directive 2000/54/EC included in its preamble discrimination based on a person’s change of sex. However, these legislative texts are not sufficient to protect trans people, in particular because of the lack of recognition and consensus of the notions of “sexual orientation” or “gender identity”. A collective proposal was thus submitted to the UN General Assembly by France and the Netherlands on sexual orientation and gender identity. Fifty-seven states approved this European proposal, but a counter-declaration by 57 other states, federated by the Organisation of Islamic Cooperation, overturned this initiative. The interpretation of the European Courts, and in particular the CJEU, can still cover the inclusion of gender expression in the notion of discrimination in the name of their fight against all discrimination based on sex
Since 2015, the Council of Europe has been encouraging member states to facilitate self-determination, de facto supporting the prohibition of discrimination based on gender identity. However, such discrimination is still only prohibited by a minority of member states.
The right to health protection: between theory and practice
In 2019, the WHO removed transidentity from the list of mental disorders. This belated reclassification is a victory for the rights of trans people, and a major step forward for access to health services.The link between transidentity and the right to health is undeniable. Denying the existence of this identity or pathologizing it leads to psychological, verbal, and physical violence against the people concerned1. Firstly, by belonging to a minority that is particularly criticised, misunderstood and institutionally discriminated against, trans people are subject to the apprehension of actual or potential violence causing abnormal stress. This reality has been the subject of numerous studies and has been theorised as ‘minority stress’ by Ian H. Meyer2. Finally, a 2017 study shows that the rate of depression is higher among trans people who have not yet transitioned or completed their transition, not only compared to cisgender people, but it also decreases among trans people who have completed the transition process3. All these similarities in scientific and empirical studies, bringing together individual and societal experiences, are evidence that being a member of the trans community affects the mental health of individuals. Thus, governments that have recently allowed self-determination acknowledged their commitment to fighting gender dysphoria by depathologizing transidentity.
The Revised European Social Charter guarantees in Article 11 the right to health protection. In the summary of the quasi-jurisprudence of the European Committee of Social Rights, the Council of Europe states that Article 11 complements Articles 2 and 3 of the European Convention on Human Rights4. Thus, the right protected by the Charter derives directly from the right to the integrity of the human person. It is explicitly stated that Article 11 is to be interpreted as including respect for physical and mental integrity as an integral part of the right to health protection5.
This interpretative development of Article 11 stems from a collective complaint initiated by Transgender Europe and ILGA-Europe against the legal obligation of sterilisation imposed in the Czech Republic on transgender persons wishing to initiate a gender change procedure in the civil registry. Thus, the rights defined by the Charter must be interpreted in the light of current reality, respecting the dignity of individuals. In this violation decision, the ECSR imposes several positive and negative obligations on governments, including the duty of direct or indirect non-interference in exercising the right to health. In the name of dignity and the notion of consent, any medical treatment that is not absolutely necessary may be found to violate Article 11, if it is required to obtain access to another right. Therefore, making a change of gender in civil status conditional to a medical operation is contrary to the Charter. This obligation of non-interference and protection of the health of trans persons was recalled by the Committee in its conclusions for 2021, as part of a general response to the right to health protection of transgender persons, but also to Poland. In its country conclusions, the Committee asked Poland to provide more information on the situation of transgender persons in the country, including on access to gender reassignment treatment and the conditions for legal recognition of gender identity.
This issue is undeniably linked to the notion of consent, since informed consent is essential for the proper exercise of the right to health, autonomy, and human dignity. Not only should transgender persons be free to seek medical treatment or surgery, but it should be preceded by adequate information. In fact, imposing a medical operation as a sine qua non condition for trans people to be recognised as belonging to the gender they correspond to, amounts to coerced consent.
Although these laws are favourable to the protection of the right to health of transgender people, they still seem too exceptional and invisibilised to be effective. The practical reality shows all the difficulties trans people face in accessing adequate health care and the many situations in which they are still subjected to degrading and discriminatory treatment.
Discrimination and harassment at work: the scourge of trans people
After analysing a series of surveys on the working conditions of trans people, the conclusion is clear: all over the world transgender people suffer from discrimination in the workplace because of being a trans minority.
In 2020, the EU Fundamental Rights Agency revealed the results of a survey entitled “A long way to go for LGBTI equality”6. In this survey the LGBTQIA+ community was asked whether they felt discriminated against based on their belonging to this community when looking for a job, and separately when working. Thus, both before and during their time at work, discrimination occurs. Among all categories of the LGBTQIA+ community, transgender respondents were significantly more likely to have felt discriminated against at work (35%). In 2022, an IFOP survey for “L’Autre Cercle” estimated that more than half of LGBTQIA+ people in France hear LGBTphobic expressions in their work organisation (“this is not a faggot’s job”, for example)7. Three out of ten say they have been the victim of at least one attack on this ground in their working life8. Between one and two million LGBTQIA+ people still hide their sexual orientation at work9. This scourge is not limited to Europe. A Canadian national survey on harassment and violence in the workplace estimates that in 2022, trans and non-binary people are subject to more harassment and violence than others.
In addition to discrimination, transgender people therefore face the problem of harassment in the field of employment. Harassment is defined as repeated acts leading to a deterioration of working conditions, which may affect a person’s rights, dignity and physical or mental health, which may jeopardise their professional future. Logically, harassment can be qualified as discriminatory if it is based on a generally accepted discrimination criterion; thus, it includes gender identity.
Article 20 of the Revised European Social Charter prohibits discrimination based on sex. Member States are required to put in place measures to ensure effective equality at all stages of professional careers. Furthermore, Article 3 protecting the right to safety and health at work should be interpreted as including the prohibition of violence and harassment at work10. The Charter does not define the risks to be regulated. Still, the Member States must demonstrate to the Committee the existence of adequate preventive and protective measures concerning certain risk areas, including psychosocial risks, work-related stress, aggression, violence, and harassment in the workplace11. It is also stated that the Charter must be interpreted in a way that is adapted to current realities, so it seems that the specific issue of trans people must be addressed and protected by companies.
At all stages of working life, whether at the time of hiring, career development or at the time of dismissal or termination, trans people suffer the consequences of trivialised LGBTphobia. This situation of human rights violations specific to LGBT persons in the workplace is particularly complex, as it is hardly regulated. Non-discrimination law must be applied in the employment sector, whether public or private. However, as mentioned above, there is no consensus on the notion of discrimination and what it encompasses. There is no specific prohibition of discrimination on the grounds of transidentity in European legislation. Case law has incorporated such violence into the prohibition of sex discrimination, but the coverage appears to be limited to people who have undergone sex reassignment.
The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, adopted in 2011, is the first human rights treaty to explicitly include gender identity as a ground for discrimination. At the national level, a minority of Council of Europe member states have explicitly included gender identity in their anti-discrimination legislation. France joined them recently, enshrining the term ‘gender identity’ as a specific discrimination12 criterion to replace ‘sexual identity’. This progressive evolution avoids confusion between “sex” and “identity” and thus eliminates stigmatisation.
However, this lack of legislation and uneven progress worldwide allows negative stereotypes and discrimination to persist. Institutions’ lack of concrete action reveals passivity and a lack of consideration of what is at stake in this discrimination and the consequences for the lives of trans people. The persistent stigmatisation prevents the understanding of the notion of trans-identity.
In fact, the most effective development at the moment is more localised. For example, in 2012, the French organisation “l’Autre Cercle” created a Charter of LGBT+ Commitment, enshrining four main principles for companies. Companies can sign the Charter, committing themselves de facto to respecting its principles and publicly demonstrating their willingness to achieve equal treatment of LGBT+ employees. Today, the Charter has 186 signatories.In the face of international discord, would civil society actors be in the best position to effectively protect the violated rights of minorities?
By Anna Diaz
- Revealed by numerous surveys, see among others: FRA – European Union Agency for Fundamental Rights, “A long way to go for LGBTI equality“, 2020 ; Lucia S, Stadelmann S, Amiguet M, Ribeaud D, Bize R, Enquêtes populationnelles sur la victimisation et la délinquance chez les jeunes dans les cantons de Vaud et Zurich. Les jeunes non exclusivement hétérosexuel-le-s :populations davantage exposées? Lausanne : Institut universitaire de médecine sociale et préventive, 2017 (Raisons de Santé 279).
- Meyer IH, « Prejudice, social stress, and mental health in lesbian, gay and bisexual population : conceptual issues and research evidence », Psychological Bulletin, 129(5), 674-697, 2003.
- Durkwood, L., MacLaughlin, K., Olson, K. (2017) “Mental Health and Self-Worth in Socially Transition Transgender Youth.” Journal of the American Academy of Child & Adolescent Psychiatry, Volume 56, Issue 2, p. 116-123.
- Digest of the case law of the European Committee of Social Rights, June 2022, p. 111.
- Ibid, p. 112.
- FRA – European Union Agency for Fundamental Rights. A long way to go for LGBTI equality, 2020.
- Results of the 3rd LGBT+ Barometer of « L’Autre Cercle » in partneship with Ifop, Un état des lieux de l’inclusion des personnes LGBT+ au travail en France, 3 June 2022.
- Ibid, pp.8-9.
- Défenseur des droits, Agir contre les discriminations liées à l’orientation sexuelle et à l’identité de genre dans l’emploi, Guide may 2017.
- Digest of the case law of the European Committee of Social Rights, June 2022, p. 63.
- Law n°2017-86 from 27 January 2017 on equality and citizenship.