feminists@law, Vol 14, No 1 (2025)

Exploring the Highlights, Limitations and Possibilities of EU Citizenship as a Progressive Status for Gays and Lesbians 

Frances Hamilton* 

Abstract

Although the original treaties of the European Union (‘EU’) conceptualised the EU as a trade body, in recent years the competencies granted by Member States to the EU have expanded greatly, not least in the area of equality and non-discrimination. In response to criticisms about a democratic deficit, the concept of EU citizenship was introduced. This entails voting, free movement, residence and non-discrimination rights across Member States for EU citizens and their family members (who do not have to be EU citizens themselves). For non-mobile EU citizens the EU has had a huge influence in expanding non-discriminatory employment rights. Yet in order to be truly democratic the concept of citizenship needs to engage with all citizens in an equal manner. In contrast to the Brexit agenda which researchers consider to be readily aligned with hegemonic masculinity, the EU is portrayed as pro-feminist and lesbian and gay inclusive. This piece tests how much in reality EU citizenship includes those who do not conform with a heteronormative, liberal equality model. Whilst real progress has been made, many difficulties remain. EU soft law in this area offers hope for future development. 

1. Introduction

In this article I consider how accessible EU citizenship-associated rights are for lesbians and gays.(1) Although originally conceptualised as a trade body in the three original treaties,(2) in recent decades Member States have granted the EU many new competencies. To combat increasing criticisms of an alleged democratic deficit,(3) the EU introduced and expanded the concept of citizenship to include many new rights in addition to national citizenship. These include free movement and rights of residence in other EU states,(4) non-discrimination provisions equating to equal treatment with host-country nationals,(5) allowing family members to take up employment or self-employment,(6) and extensive schooling provisions for children of EU citizens.(7) Since 2000, the EU has adopted far-reaching protections from discrimination on the basis of sexual orientation.(8) By means of powers now contained in Article 19 of the Treaty on the Functioning of the European Union, the EU can implement legislation within its competencies to ‘combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’.(9) The EU has also adopted the Charter of Fundamental Rights, Art 21(1) of which includes ‘sexual orientation’ as a protected characteristic against discrimination.(10) It is important that all citizens are truly included, as otherwise the EU will continue to suffer from a lack of demos,(11) or a lack of voluntary connection by individuals.(12) A demos is needed to ensure the necessary ‘coherence, shared objectives, and a propensity for solidarity’ to build a common project such as the EU. (13) As Weiler explains ‘[i]f there is no demos, there can be no democracy’.(14)

Some authors have argued that the EU is pro-feminist and lesbian and gay inclusive, portraying it as the ‘most progressive gender regime in the world’(15) and connecting EU citizenship with support for gender equality.(16) These arguments came to the fore in the aftermath of Brexit (the process whereby, following a referendum in 2016, the UK withdrew from the EU on 31 December 2020). Researchers analysed Leave campaigns and ‘established the presence of hegemonic masculinity’,(17) here understood by the definition provided by Raewyn Connell as ‘embod[ying] the currently most respected/honoured way of what it means to be a man’ and central to upholding the patriarchal order.(18) More specifically Galpin explains that Brexit Leave campaigns, as exemplified by arch Brexiteer Jacob Rees-Mogg, chose to concentrate upon  ‘acceptable notions of the white “masculine” citizen – rational, individualist, aggressive’ and  ‘focused primarily on issues of “high politics” – security, economy and immigration’.(19) Pro EU activists considered that ‘voting leave … was associated with opposition to feminism, social liberalism, and LGBT rights’.(20) The debate and discourse around Brexit, commentators concluded, therefore ‘bolster[ed] gendered hierarchies’ and resulted in excluding ‘other’ groups, such as women and lesbians and gays, from participating effectively in the debate. (21) Pro-EU campaigners concluded that leaving the EU was ‘ultimately worse for women’.(22)

In contrast to analysing Leave campaigners, Galpin’s work involved interviewing 11 pro-EU campaigners in 2019 and considering ‘masculinity in pro-European campaigns’.(23) Her interviews with pro-EU campaigners revealed that they opposed the Brexit campaigners’ location of EU citizenship within the masculine space of the market, depicted as  ‘neo-liberal inequality’,(24) and instead constructed the EU as a symbol of ‘caring capitalism’.(25) Pro-EU campaigners were connected with pro-lesbian and gay activism,(26) matching Slootmaeckers’ argument that such rights have become an ‘identity marker’ for the EU.(27) Perhaps when contrasted specifically with the Brexit Leave agenda, the EU could be considered to be more pro-feminist and lesbian and gay inclusive.  However this article argues that outside of the specific juxtaposition to the Brexit agenda, it is inaccurate to portray the EU concept of citizenship as pro-feminist and lesbian and gay inclusive, as the productivist origins of the EU continues to underpin the EU project. This article considers, however, that soft law development offers a way forward for the EU.

First we must understand what is meant by citizenship. Definitions of citizenship have been extensively analysed over centuries. In ancient times Roman authors deemed political participation to be central to citizenship.(28) In Citizenship and Social Class, first published in the 1950s, Marshall expanded on earlier definitions to include civil, political and social rights.(29) Everyone who fulfilled the definition of citizenship was, in Marshall’s view, given equal status as a ‘full member of the community’.(30) Yet feminist writers exposed weaknesses in Marshall’s definition of social citizenship, arguing that it was too closely related to economic productivity, rendering the private space ‘invisible’ and consequently ‘undervalu[ing]’ women’s conventional responsibilities for the care of children, household and the elderly’.(31) Behind the notion of citizenship lies the ‘abstract notion’ of the ‘image of a man – and usually that of an able-bodied, heterosexual and middle-class man who engages with his peers in the public space’.(32) As the EU concept of citizenship remains primarily centred on the idea of a mobile citizen able to move internationally to take up new work opportunities, EU law has been criticised as being ‘gender blind’.(33) Perhaps gender blindness is not the specific difficulty, as EU law has made advances in setting out formal equality in law through prohibiting for instance sexual discrimination in an employment context.(34) It does need to be recognised, however, that formal equality does not always equate to substantive equality because of the different social roles and economic power between different groups in society. For instance, Lovenduski explains that it ‘shouldn’t be assumed that all genders engage with the EU in the same way’.(35) Authors such as Ackers consider that EU law excludes female citizens.(36) Solanke conducted an intersectional analysis of EU citizenship law and Brexit’s impact on Black women and children, demonstrating their struggles for inclusion.(37) Tryfonidou has written extensively on EU engagement with lesbian and gay freedom of movement and expanding non-discrimination law.(38) Yet following Brexit, and the renewed conception of EU citizenship as pro-lesbian and gay, there has been little analysis of how correct this view is, and the possibilities for future action. This is the gap that I intend to fill here.

It is crucial to examine this now. Whilst there are many reasons for Brexit, authors argue that the perception of a ‘democratic deficit’, encompassing the idea of a lack of demos was an important element to the successful Brexit campaign.(39)  Hobolt further explains that the argument raised in the Brexit campaign about ‘regaining control’ was an influential reason to vote leave.(40) A ‘precondition’ to making this argument ‘persuasive’ was a ‘widespread perception of the EU’s so-called democratic deficit’.(41) This article is timely as 2024 saw populist right-wing politicians making gains in the European Parliament elections following similar results in elections across Europe. For example, in 2022 a populist right-wing Prime Minister (Giorgia Maloni) was elected in Italy and Hungary’s populist right wing Prime Minister (Viktor Orbán) was re-elected. In 2023 a populist right-wing party became the largest political party in the Netherlands House of Representatives. Whilst there are many reasons for the rise of the far right, including difficult economic circumstance and high immigration, Euroskepticism also plays a part. This has led to the EU experiencing increasing challenges to its authority, known as the ‘EU’s Rule of Law crisis’.(42) The EU’s Rule of Law enshrined under Article 2 of the Treaty of the European Union is described by the European Commission as being a ‘cornerstone of the European Union’.(43) The Rule of Law requires uniform application of EU law across Europe and is linked to important concepts such as legality, legal certainty and effective judicial protection, separation of powers and equality before the law.(44)  One of the key areas of challenge to the EU’s Rule of Law is resistance from certain EU Member States to EU legislation prohibiting discrimination against lesbians and gays. This can be demonstrated by the Commission commencing legal action against Hungary and Poland in 2021 for violations of fundamental rights of LGBTIQ people contrary to EU law.(45) Whilst the case against Poland has been dropped, the EU Commission case against Hungary (with interventions from 15 EU Member States) is now proceeding before the Court of Justice of the European Union (CJEU).(46) In addition, despite EU soft law (non binding) support for lesbians and gays,(47) right wing governments in Europe have recently enacted legislation which impacts negatively on lesbians and gays. In 2021, Prime Minister Viktor Orban of Hungary supported legislation to partially ban adoption by same-sex couples.(48) In Autumn 2023, Italy under rightwing Prime Minister Giorgia Meloni limited recognition of parental rights to the biological parent only in the case of same-sex couples.(49)

In the next section, I examine the challenges in portraying EU citizenship as inclusive of lesbian and gays, given the economic origins of the predecessors of the EU and the continuing views of many that the EU is primarily still a trade agreement. I argue that freedom of movement of the factors of production (including labour) at the basis of the original trade agreements has continued to inform understandings of EU citizenship. This means that important social advances which have followed have been tied to such a conceptualisation. In section 3, I consider the accessibility of EU free movement rights for lesbians and gays, and in section 4, I analyse how inclusive of lesbian and gay family relationships EU law currently is. In section 5, I consider the EU citizenship rights of EU ‘stayers’, who comprise the vast majority of the EU population, and analyse whether these rights are equally as accessible for lesbians and gays. In section 6, I consider how soft law offers a promise to move us beyond the impasse of the ‘economically active subject’. In my conclusion I consider how EU citizenship could evolve to be more inclusive. Perhaps a new idea of citizenship is needed, moving away from a rights definition and instead more closely allied to accessibility for individuals.(50) This would include evaluating the practices of inclusion, to include both social and legal methods such as soft law expansion.

2. The Original Economic Origins of the Predecessors of the EU

The difficulty with depicting the EU as inclusive of lesbians and gays can be illustrated by understanding that the main purpose of the three original European communities was trade.(51) The three original communities, together with the European Convention of Human Rights, were all founded in the 1950s with the desire to avert another war.(52) However, whilst the latter was concerned with human rights, the core content of the three original European communities was to establish an internal market with free movement of goods and persons. There was no notion of citizenship. From the beginning, and continuing to the present day, the future development of the EU incites tensions between intergovernmentalists and supranationalists. Intergovernmentalists prefer power to be retained by the nation state and view the EU as primarily an economic body. In contrast, supranationalists consider that the union takes precedence, and stress citizenship as a central concept with common status and identity.(53) It is the latter group who offer most hope for the future conception of EU citizenship as gay and lesbian inclusive.

Over the last seven decades the EU has enjoyed an increasing array of competencies beyond the scope of the economic sphere, not least in the area of equality and non-discrimination.  Yet, with Member States granting increasing powers to the EU, criticism became louder that the EU was suffering from a democratic deficit with no voice being given to citizens.(54) Whether a democratic deficit actually exists has been much debated.(55) In any event, the introduction of European citizenship became a ‘major priority’ of the EU in order to address these concerns and for the EU to ‘legitimize itself’.(56) In 1992, the Maastricht Treaty introduced the concept of citizenship alongside other attempts to produce a demos including a flag, anthem and European Health card.(57) The Treaty on the Functioning of the EU (‘TFEU’) now determines that anyone is an EU citizen who holds the nationality of a Member State (however defined).(58) No barriers to participation, and no mention of economic productivity, are therefore contained in this definition. However, formal equality in law does not equate to substantive equality and certain groups continue to engage with EU citizenship rights less, due to their differing social roles and economic power. For example, whilst all EU citizens have the ability to vote in European Union Parliamentary elections,(59) in reality voter engagement is low, and ‘younger, more socially deprived, and less educated people vote less’ as they already feel ‘out of the game’ and lacking power at national level and even more at EU level.(60) In 2024 voter turnout was over 51% and this was the highest level since 1994, with participation dropping below 50% in the years between 1994 and 2019.(61) 

3. EU Free Movement Rights

The most significant extra dimension of EU citizenship, in addition to national citizenship, is that associated with freedom of movement.(62) However, in practice certain groups face difficulties in actually exercising free movement rights. Under EU Citizenship Directive 2004/38, all EU citizens have a general right of residence in any other EU country for up to three months (article 6) with further rights of residence after three months for those who are employed, self-employed, of independent means or students (article 7) and with permanent residence in another Member State being obtained after five years (article 16).(63) Family members of EU citizens (even if not EU citizens themselves) obtain the right to move with the EU citizen to the new Member State, not to be discriminated against and to enjoy equal treatment in employment.(64) Yet not all EU citizens find it equally easy to exercise free movement rights. This is exacerbated by the fact that although the EU definition of citizenship under Article 20 TFEU provides that any citizen of a Member State is also a citizen of the EU, in practice EU citizenship continues to be available only to those who are economically active in their host Member State and consequently not a ‘burden’ on economic resources.(65) Statistics demonstrate that only a minority exercise free movement rights. From the EU population of 446.8 million inhabitants, in 2020, only 3.8% of EU citizens of working age (20-64) resided in another EU country, although this was up from 2.4% in 2009.(66)

Polls demonstrate that ‘women are less likely to exercise freedom of movement rights’.(67) This results in a ‘feminist’ problem for EU citizenship which continues to be rooted in ‘market citizenship’(68) disadvantaging women ‘on account of their caring and domestic roles’.(69) Although it has been illegal across the EU to discriminate against lesbians and gays at work since legislation introduced from 2000,(70) lesbians and gays continue to experience wide ranging discrimination, as evidenced by the equality data gathered by the European Fundamental Rights Agency’s EU LGBTIQ survey in 2023.(71) As part of soft law provisions through the European Commission LGBTIQ Equality Strategy 2020-2025 the European Fundamental Rights Agency is tasked with monitoring the success of EU non-discriminition, equality and diversity strategies. The third wave of the EU LGBTIQ survey was launched in 2023 and led to the participation of 100,577 LGBTQIA respondents across 30 countries.(72) The survey found that 36% of participants (down from 42% in 2019) experienced discrimination in one area of their life in the previous 12 months.(73) Specifically in relation to economic factors, the ‘rate of perceived discrimination (when looking for work)  was similar across the three survey waves (2012, 13%; 2019, 10%; 2023, 9%)’. When in work, 18% of survey responsdents continued to feel discriminated against in 2023 as compared to 21% in 2019.(74) This high level of reported discrimination in employment(75) impacts on lesbians’ and gays’ working conditions and consequently their ability to exercise freedom of movement where this is connected to being economically active.

It is crucial to examine how the CJEU has interpreted the meaning of citizenship. Prior to the introduction of the umbrella category of citizens in the Maastricht Treaty in 1992, EU law firmly linked freedom of movement to being economically active. The EU gave free movement rights to workers(76) and self-employed persons (establishment and services).(77) These categories continue to exist in the present-day EU treaties, alongside the new category of citizens. EU law categorises workers as those who provide services to another in return for a monetary reward.(78) Economic criteria are therefore paramount, although monetary reward has been interpreted extensively to include (for example) part-time work,(79) and for payment in kind.(80) Despite this wide definition, a connection to an economic activity continues to exist. Case law began to interrogate what rights would attach to citizenship itself, outside of economic criteria.

A series of cases in the 2000s at first gave an expansive interpretation of citizenship rights, even for those who did not fall within the category of worker.(81) It was held that as long as EU citizens were lawfully resident within a host Member State according to national law, then they could invoke the EU principle of non-discrimination to claim benefits.(82) This can be exemplified by Martinez-Sala, which concerned an unpaid carer who successfully relied upon EU citizenship non-discrimination provisions to claim benefits.(83) Any limitations had to be applied in a proportionate manner.(84) Other examples include work-seekers being able to be resident in order to claim work-seeker’s benefits providing they were ‘for a reasonable period, genuinely seeking work’.(85) These much celebrated extensions allowed non-economically active EU citizens to rely on non-discrimination provisions to claim access to state welfare. However, even at this high point of the case law, citizenship rights belonging to all EU citizens remained much more limited than those based on being economically active.(86) Richer states also began to express concerns that this line of case law would lead to benefits tourism,(87) despite little evidence for this. 2016 figures demonstrate that out of all EU immigrants in the UK, only 5% were claiming jobseeker’s allowance, while less than 10% were claiming other working age benefits,(88) with a total employment rate of 77.5%.(89) However, such fears did demonstrate the ‘fragil[ity]’ of a commitment to EU citizenship.(90) Instead of a supranational conception of citizenship, many EU Member States preferred an intergovernmental system, with a limited conception of EU citizenship, closely tied to economic status.

In response, the CJEU began to take a stricter approach to those seeking to rely upon citizenship rights when not economically active. In Dano, for instance, it was held that in order to claim EU non-discrimination rights, claimants not only had to be lawfully resident but comply with economic self-sufficiency criteria so as not to be a burden on Member States.(91) The CJEU made a clear distinction from workers who could automatically stay longer than three months.(92) The court distanced itself from previous case law which had stressed that Member States had to carry out a proportionality balancing test before expelling claimants on the basis of being a burden on resources. Commentators have therefore concluded that EU citizenship represents a ‘highly differentiated opportunity’,(93) excluding ‘implicitly many who are not economically active’.(94) This line of case law, proceeding on the basis of ‘formal equality’ before the law – and the idea that individuals should all be treated ‘alike’ – is a clear demonstration of liberal equality.(95) As such, the CJEU drew back from stressing non-discrimination criteria, as seen in Martinez-Sala,(96) instead stressing economic criteria. It can be argued that this disadvantages women who are more likely to be care-givers and therefore more likely to be less economically active and to work part-time.(97) This exemplifies feminist criticisms of law according to which ‘[n]o one represented women’s interest as women in creating [the law], and few have considered women’s interests in applying it’.(98) In addition, given the level of discrimination which lesbians and gays report in their general life, when looking for work and at work, as recorded by the European Fundamental Rights Agency in 2023,(99) it also ignores the difficulties that lesbians and gays may face in finding and then when performing paid employment across different EU Member States. Pinning free movement (one of the most crucial aspects of EU citizenship) to economic activity serves to illustrate the continuing difficulties of EU law in not considering substantive barriers to certain groups in trying to access EU rights. In this context soft law provisions offer potential to deal with this issue with further analysis on this point in section 6.

4. EU Free Movement Rights and Family Status

A key part of EU free movement rights, essential to EU citizenship, is the right of family members (even if not EU citizens themselves) to move with the EU citizen to a new Member State, be able to take up work and school and not to be discriminated against.(100) As Tryfonidou explains, the ‘rationale’ behind family reunification rights is to ensure that citizens will not be deterred from exercising their EU free movement rights.(101) Free movement rights become meaningless if an EU citizen’s family cannot move with them. It is therefore essential to understand who is a family member under EU law. The EU Citizenship Directive defines family members to include under Article 2(2) ‘(a) spouse, (b) … registered partnerships … if the legislation in the host Member State treats registered partnerships as equivalent to marriage, (c) direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b)’.(102) Further, Article 3 includes other family members ‘who are dependants or members of the household of the EU citizen ... and the partner with whom the EU citizen has a durable relationship duly attested’.(103) Extensive interpretation of family membership has been criticised by EU states who take an intergovernmentalist approach in wishing to keep close control on family law.(104) From a queer point of view, criticism has centred on the heteronormative aspect of how family members are defined. For example, queer theorist Lisa Duggan has argued that marriage does not ‘accommodate [the] elaborate, innovative forms of intimacy, interconnection, and dependency’ on which gay and lesbian relationships are built.(105) As such the emphasis placed on ‘spouse’ by EU law would never suit her point of view.

EU law has no competency with regard to Member State family law and consequently cannot dictate to Member States whether to legalise same-sex marriage or civil partnership.(106) Across the EU’s 27 Member States, 17 recognise same-sex marriage, and in addition eight recognise some form of civil partnership.(107) There is less recognition of children of same-sex couples, as can be demonstrated by ILGA Europe’s Rainbow map.(108) Whilst advances in medical science can lead to joint parenting in a number of ways including donor insemination and surrogacy, and some jurisdictions now allow for same-sex couple adoption and step-child adoption, same-sex couples are generally ‘still incapable of having children who will be genetically related to both members of the couple’.(109) Whilst heterosexual couples may also have children who are not genetically related to both parents, it is always an assumption that the man is the father to the children when he may not be. Same-sex couples do not benefit from this same approach. All EU Member States are members of the Council of Europe, and the legal rights protections set out by the European Court of Human Rights (‘ECtHR’) form a minimum line of protections which the EU must adhere to.(110) The ECtHR jurisprudence is also a source of law for CJEU jurisprudence and its case law must be analysed when considering the impact on EU citizenship in this regard, but this only applies in relation to matters within the EU’s competence. (111)

Yet whilst the ECtHR has led the way in developing human rights protections for lesbians and gays, including decriminalising sex between men(112) and equalising the age of consent for opposite sex and same-sex couples(113) in other areas of family law, the ECtHR continues to allow a large margin of appreciation, or area of discretion, which it justifies due to a lack of consensus across Council of Europe States. The Council of Europe is wider than the EU and has even less homogeneity. The Council of Europe does not require its members to legalise same-sex marriage,(114) although they must now recognise some form of civil partnership.(115) Similarly, on the issue of rainbow families (in the context of this article, families composed of a same-sex couple and their child[ren]) there is a wide margin of appreciation, leaving much discretion to contracting states to the European Convention of Human Rights (‘European Convention’).(116) However, more recent ECtHR case law has been favourable to rainbow families. For instance, where signatory states allow a person or a couple to adopt, they must do so without discrimination on the grounds of sexual orientation.(117) If a state allows unmarried opposite sex couples to adopt, then they must also allow this right to same-sex unmarried couples.(118) The ECtHR also tries to avoid ‘limping’ situations where a parent-child relationship is recognised in one jurisdiction, but not in another,(119) and the ECtHR has recognised the best interests of the child as ‘paramount’.(120) In the recent case of DB v Switzerland, the ECtHR considered that Switzerland had violated the European Convention due to its refusal to recognise parentage established abroad and not to allow the step-child adoption of the child of the same-sex partner.(121) However, the ECtHR has interpreted the European Convention to determine that it does not impose an obligation on signatory states to allow same-sex couples to adopt when considering families who have not moved cross-border. The ECtHR confirmed in Alekseyev v Russia that there is a wide margin of appreciation in respect of those issues.(122) Therefore, the EU is under no obligation from the ECtHR’s current jurisprudence concerning the European Convention to recognise either same-sex spouses or rainbow families. Yet, over time the EU has adopted a dynamic and far-reaching interpretative perspective, although perhaps ultimately the nuclear family remains the gold standard against which the others are judged.

4.1 Spouse, Civil Partner and Long Time Partner

Citizenship Directive 2004/38 specifically includes the spouse as a family member under Article 2(2). Initial case law took a very traditional view of marriage. This was defined as a formalised marital status in Netherlands v Reed.(123) Marriage bonds meant that the non-EU citizen partner could rely upon them to exercise freedom of movement and residence in another Member State, even where separated but not yet divorced.(124) Despite a slow start, same-sex spouses were expressly recognised as spouses in the Coman case for the purposes of freedom of movement.(125) This ‘landmark’ case demonstrates the expanding nature of EU citizenship.(126) When compared to other international courts such as the ECtHR, which continues to rely on a margin of appreciation, the CJEU has taken a leading approach.(127) However, due to the limited competence of EU law, this resulted in freedom of movement (with associated rights such as work and non-discrimination) but crucially did not result in any change in the law of the host Member state. Judgments from international courts also do not immediately change the culturally conservative nature of the countries in question. In the Coman case, in fact, the couple struggled to have the CJEU judgment enforced, leading to questions about the Rule of Law in Romania.(128)

The Coman case concerned marriage and did not deal with other types of recognised relationship status. Registered partners are specifically referred to in the Citizenship Directive, with the limitation that EU states should allow registered partners to move with EU citizens only where ‘the host Member State treats registered partnerships as equivalent to marriage’.(129) EU law only provides freedom of movement and associated rights, yet what rights are included within civil partnership varies massively jurisdictionally and might not include national citizenship or parental rights. EU law alignment with family status and marriage and civil partnership does not always suit the lifestyles chosen by all lesbians and gays. Some queer theorists reject marriage, as their lives are (in the words of Duggan) ‘intertwined in ways that do not fit with one-size-fits-all marriage’.(130) Until a few decades ago, as illustrated by the enactment of the UK Civil Partnership Act 2004, civil partnership, as opposed to same-sex marriage, was still the ‘preferred’ status for many lesbians and gays themselves, as well as some of their representative organisations including Stonewall (at the time a leading gay rights organisation in the UK).(131) Prior to the Same-Sex Marriage Act 2013, a government consultation demonstrated that a majority (53%) of those surveyed in England and Wales had now moved to support same-sex marriage.(132) This follows trends in other European countries. However, still today many do not wish to enter into marriage. This is due to varying reasons. Marriage continues to be associated with patriarchal baggage(134) due to its long history of controlling women, for example in England and Wales through the system of coverture.(135) Others would never support any system of recognised relationship status, including civil partnership in all its forms, believing that rights should attach to individuals rather than be obtained through another person.(136) Although driven by different motivations, these perspectives challenge liberal (legal) assumption of a unitary and coherent ‘LGBTQ+ community’ that can be represented meaningfully through identity politics. Statuses such as marriage and /or civil partnership and the heteronormativity implied by equality are rejected and instead such individuals prefer a more ‘thoroughgoing resistance to regimes of the normal’.(137) For lesbians and gays who are not the ‘marrying kind’, EU legal protections dependent on statuses such as marriage or civil partnership would never be suitable. Any couple without a recognised relationship status, seeking to rely upon EU law is then left only with the provisions of Article 3(2) of the Citizenship Directive. This provides that Member States shall in accordance with their national legislation, ‘facilitate’ entry and residence for ‘the partner with whom the EU citizen has a durable relationship duly attested’.(138) Here, rights are much more limited. Persons who claim to fall within Article 3(2) cannot require the host state to automatically accept them. Instead, the provisions require the host state to ‘undertake an extensive examination of their personal circumstances’.(139) Commission Guidance from 2023 does include same-sex couples within the potential couples who could fill the criterion of ‘durable relationship’.(140) However the lack of an automatic right of entry for such partners is demonstrated by the Guidance going on to explain that ‘national legislation must provide for a careful examination of the relevant personal circumstances’  and factors taken into consideration are ‘their relationship with the EU citizen or any other circumstances such as their financial or physical dependence’. (141) 

4.2 Rainbow Families

Tryfonidou concludes that rainbow families, remain ‘controversial’ and challenge some of the main assumptions that underpin the idea of a nuclear family comprised of an opposite-sex couple and their biological descendants.(142) The Citizenship Directive 2004/38 sets out family members who are explicitly covered. Article 2(2)(c) defines family members as direct descendants (children, grandchildren, etc.) who are under the age of 21 or who are dependants (Lebon) and also includes step-children (Baumbast).(143) Therefore, the link between ‘children and their (heterosexual) stepparents’ is explicitly recognised under Article 2(2)(c). Upon exercising free movement, children of EU citizens are entitled to access education and not to be discriminated against.(144) Minor EU citizens, utilising rights directly derived from citizenship under Article 21 TFEU, can also not only exercise their right to move and reside in their new host EU territory, but can also ‘claim the right to be joined or accompanied by their primary carer’.(145) Once adults, EU citizen children can then also ‘sponsor’ their parents or step-parents in the ascending line to join them in their new host Member State.(146) 

Criticism has been levelled at the heterosexual framing of the categories of family members entitled to exercise freedom of movement, as children who come from ‘nuclear families’ can most ‘clearly qualify’.(147) It was far less easy to understand how children from rainbow families would be treated, especially given the lack of recognition of such family statuses across the EU and the lack of explicit assistance from ECtHR case law in this respect.(148) Up until recently there had been no case law on this issue and academics were split in their view as to how the EU would interpret law in this area. On the one hand, McGlynn was pessimistic, given that the phrasing of the Directive referred specifically to ‘direct descendant’.(149) On the other hand, Stalford was ‘more optimistic’, arguing that ‘direct descendant’ could include those with ‘no direct biological link’ as previous case law refers to ‘stepchildren, adopted or foster children, or even the children of the migrant’s unmarried partner’.(150) In this area positive progress has been made by the EU.

‘The Baby Sara case’ saw the CJEU obliging Bulgaria to recognise the free movement rights of a daughter of a same-sex couple born in Spain, whose lesbian parents were of UK and Bulgarian nationality and both named on the Spanish birth certificate.(151) On 24 June 2022, the CJEU reiterated its arguments in a similar case concerning Poland.(152) This followed a resolution by the European Parliament on 5 April 2022 calling upon Member States to enforce judgments in cross-border family disputes concerning children, in line with Article 24 of the EU's Charter of Fundamental Rights.(153) As part of soft law and the EU Commission’s 2020-2025 LGBTIQ equality strategy, Members of the European Parliament pushed the European Commission to craft a proposal to enshrine the cross-border rights of ‘rainbow families’ into EU law.(154) Yet, in the debate in parliament, whilst some MEPs urged the Commission to ‘pursue infringement proceedings and impose sanctions against states that do not comply with the CJEU ruling’, other MEPs stressed that ‘parenthood recognition rules currently fall under the competence of Member States’ and expressed concerns about the Commission over-stepping its mandate.(155) In December 2022, the Commission proposed a Regulation to support the mutual recognition of parenthood between Member States,(156) although acceptance is not likely given that unanimity from Member States is required.(157)

This action by the EU and case law from the CJEU are successes for rainbow families and go some way to ameliorating Tryfonidou’s pre-existing concerns that in not recognising rainbow families, ‘the legal ties binding their members are put in jeopardy’.(158) Yet there are clear limitations with EU law. The proposed EU Regulation would only affect rainbow families who move across borders where EU freedom of movement provisions come into play. EU law does not apply to recognition of family member status in purely ‘internal situations’ where the couple in question has not moved cross-border and has no connection with EU law. Hence, whilst EU institutions can aspire towards greater rights for lesbians and gays as part of the soft law strategy under the LGBTIQ Equality Strategy 2020-2025, they cannot make Member States legalise same-sex marriage or allow same-sex couples in their territory to become the de jure joint parents of a child. It remains true that the nuclear family, consisting of different-sex married spouses and their biologically-linked children, is ‘the gold standard’.(159)

5. EU Citizenship Rights for EU Citizen Stayers

As previously stated, in practice it is only a minority of EU citizens who actually utilise free movement. This section therefore analyses the impact of EU law for those who stay at home (‘stayers’), who comprise 96.2% of EU citizens.(160) The conception of EU citizenship rights being portrayed as pro-feminist and lesbian and gay inclusive(161) is perhaps most influenced by the impact that the EU has had in the area of paid employment, which falls within the area of EU competencies. However, the EU has limited impact in other areas, as Member States retain competency over family law and welfare and benefits. The tension between the intergovernmental and supranationalist approaches remains. Leading author Gillian More has analysed the different economic and constitutional justifications for EU expansion in this area.(162) Intergovernmentalists would be more likely to support More’s ‘market unifying’ or ‘regulatory’ approaches. The necessity of a ‘unified market’ emphasises ‘equality of access for products, services and persons’.(163) EU regulatory approaches ensure that interventions in the market should always be undertaken in accordance with the principle of equal treatment. However, supranationalists would prefer More’s ‘constitutional’ justification for EU expansion.(164) On this basis they would refer to the EU development of a general principle of non-discrimination with no link to economic circumstances of free movement at all. It is the latter approach which is given most emphasis in recent case law. Equality is now viewed by the CJEU very much as a fundamental right,(165) as further emphasised by Article 19 TFEU and the Preamble to the ‘Recast’ Equality Directive 2006/54. Yet, closer examination of the enacted legislation and case law still reveals necessarily a divide between, on the one hand, legislation related to employment law and associated economic activities falling within the area of EU competency and, on the other hand, wider based welfare provisions or family law provisions, falling outside EU competency. This relates to the original economic conception of the EU in the first three trade agreements, and continues to inform our understanding of EU citizenship.  In the next section, I examine the challenges in portraying EU citizenship as inclusive of lesbian and gays, given the economic origins of the predecessors of the EU and the continuing views of many that the EU is primarily still a trade agreement. Ultimately, this limits how accessible EU rights are for all EU citizens and reveals a crucial tie to economic activity. Once again, this disadvantages groups such as lesbians and gays who, according to the EU Fundamental Rights Agency survey are more likely to suffer discrimination in accessing and during employment.(166)

Where there is an economic link demonstrated, and therefore crucially falling within the EU competencies, the EU has taken an expansive approach towards increasing the protections offered by non-discrimination provisions. This was first done in relation to equal pay provisions between men and women. In the original EEC treaty the sole protection for women was Article 119 EEC on equal pay (now Article 157 TFEU). Even that had only originally been included because of economic concerns about ‘regulating the internal market’(167) and in order ‘to assuage the concern that some countries might use cheaper “female” labour to [pursue] competitive advantage’.(168) However, despite the original economic aim, the inclusion of gender equality has been analysed by some as the ’arrival of “women’s inequality” as a social problem’.(169) This was strengthened by the famous Defrenne v Sabena case (litigation begun before the Conseil d’Etat in Belgium in 1970, with judgment from the CJEU in 1975),(170) where equal pay provisions were given direct effect, meaning that EU law was now judicially enforceable in each Member State against private employers. The importance of this case law has been described in glowing terms by various authors as ‘becoming the site for an expansive rights discourse’ and the ‘driving force behind EC sex equality legislation in the 1970s and 1980s’.(171) In Defrenne itself the CJEU set out the ambitious nature in terms of gender equality explaining that the EU was no longer concerned with being a purely economic union but that gender equality now formed one of the ‘social objectives of the Community… [in order] to ensure social progress’.(172)

The Defrenne case paved the way for further legislation in the 1970s focussing on equal opportunities between the sexes in employment, including the Equal Pay Directive 1975(173) and the Equal Treatment Directive 1976.(174) The latter expanded equal treatment to many wider issues related to employment including access, training, promotion and conditions of work.(175) Subsequently, the EU began adopting numerous related directives to tackle specific areas of gender discrimination.(176) Following the Amsterdam Treaty in 1999, equality between men and women became a ‘major mission’ at the same level in some commentators’ views as ‘economic development and cohesion’.(177) The ‘Recast’ Equal Treatment Directive 2006/54 systemised and simplified the existing legislation into one place,(178) clarifying the EU’s prohibition of direct and indirect discrimination.(179) The Lisbon Treaty in 2009 and EU Charter on Fundamental Rights both emphasised gender equality. Article 153 TFEU makes equal treatment of men and women in the labour market a sphere of supportive and ‘complementary’ EU action, allowing for the adoption of ‘minimum requirement’ directives. Article 23 of the Charter, which has equal status to that of the Treaties, now provides that ‘equality between men and women should be ensured in all areas including employment, work and pay’.(180)

However, this legislation did not provide any opportunities for lesbians and gays seeking equality at work. It is true that for several decades (until the Amsterdam Treaty 1999) EU law involvement concentrated almost exclusively on sex equality in the employment context. Initially, the CJEU followed a very conservative or ‘reticent’ approach towards lesbians and gays.(181) The first case brought to the CJEU claiming sexual orientation discrimination in employment failed because the EU at the time did not prohibit discrimination on the basis of sexual orientation and did not consider same-sex relationships as ‘equivalent to opposite-sex marriages’.(182) Following the Amsterdam Treaty 1999, Article 19 TFEU gave the EU competence to create legislation prohibiting discrimination on a number of protected characteristics. The Framework Employment Directive 2000/78 was subsequently enacted prohibiting employment-based discrimination on a range of protected characteristics including sexual orientation.(183) Article 21 of the EU Charter on Fundamental Rights 2009 now prohibits discrimination on a wide range of grounds including sexual orientation. Several authors have therefore concluded that following Amsterdam, ‘gender equality and non-discrimination’ are the ‘guiding legal principles of the union’.(184) It could also be argued that the specific reference to sexual orientation as a protected characteristic is further reaching that the European Convention on Human Rights which has no reference to this specific criterion and depends on case law interpretation.

The EU Framework Employment Directive (2000) prohibits discrimination in the area of employment, including for lesbians and gays. It is correct to state that what is deemed to fall within the scope of employment has been interpreted widely. This includes (i) access to employment including selection criteria, recruitment and promotion, (ii) access to vocational guidance training and retraining, (iii) employment and working conditions, including dismissal and pay and membership of and involvement in workers’ or employers’ organisations.(185) Case law has also given extensive interpretation to the Framework Employment Directive to include statements made outside of a recruitment context. For example in Associatia Accept, the homophobic remarks made by a shareholder of a football club to the effect that he would never hire a gay person, were found by the CJEU to fall within the Framework Employment Directive, and to be attributed to the club, despite no recruitment procedure being underway.(186) A similar approach was taken in relation to homophobic comments made by a senior lawyer in a law firm in the course of a radio interview, even where no recruitment procedure was underway.(187) Yet, actions under the Framework Employment Directive are limited to prohibiting discrimination in the area of employment. This is unlike the Race Directive (2000), adopted shortly before the Framework Employment Directive, but with a wider remit to prohibit discrimination not only in the area of employment but also concerning social protection, health care, housing, and education.(188) Further, whilst the Race Directive only allows discrimination to be justified on the basis of genuine occupational requirements and positive action,(189) the Framework Employment directive allows more general justifications.(190) Yet, when the European Commission’s proposal for a wider reaching directive(191) was discussed in the European Parliament, meaning that the Framework Employment Directive would be expanded to replicate the wider scope of the Race Directive outside of the remit of employment, Germany stood against this, due to concerns about costs.

The EU’s expanding protections in the employment context still continue to be related to citizens being economically active, maintaining the original understanding of EU Treaties as being of an economic nature, and placing a constraint on our understanding of EU citizenship. The EU has sought to extend its competencies where possible, including for example giving the EU equal pay provisions (directly effective under Article 157 TFEU), a wide scope to include, for example, travel facilities,(192) severance grants(193) together with occupational pension schemes (paid through the employer).(194) With reference to lesbian and gay rights, the CJEU has taken a leading approach in determining in Maruko that the surviving partner of a same-sex couple was entitled to occupational pension rights on a non-discriminatory basis.(195) However, as family law remains outside EU competency,(196) a crucial caveat was imposed in Maruko, stating that this only applied, providing that the host country treated same-sex marriage and civil partnership as equivalent to heterosexual marriage.(197) The dividing line between EU competencies relating to paid work and state competencies relating to benefits remains. State pension schemes and other welfare benefits are crucially not included.(198)

6. EU Soft Law Provisions

Perhaps there is a way forward moving beyond the impasse of the economically active subject. The EU has sought to ameliorate the political difficulties surrounding its lack of competencies by introducing wider reaching social provisions utilising soft-law or non-binding provisions. In the decade prior to the introduction of citizenship by Maastricht in 1992, with the EU moving from a ‘predominantly economic project into a more political project’,(199) gender-equality concerns were prioritised. This was done by the establishment of the Equal Opportunities Unit of the European Commission and the European Parliament Committee on Women’s Rights and Equal Opportunities. Nowadays the EU social pillar, endorsed in November 2017, sets out 20 key principles structured around equal opportunities and access to the labour market, fair working conditions and social protection and inclusion. Expectations regarding lesbian and gay rights have led to the LGBTIQ Equality Strategy 2020-2025(200) on which there are yearly updates.(201)  Core priorities include (1) tackling discrimination against LGBTIQ people, (2) ensuring LGBTIQ people’s safety, (3) building LGBTIQ inclusive societies (around ensuring the rights for LGBTIQ people in cross-border situations) and (4) leading the call for LGBITQ equality around the world.(202) Although implementation of these soft law policies remains with Member States, a growing number of European bodies support the LGBTIQ Equality Strategy, allowing more possibility of accessing and supporting development of how EU lesbian and gay citizenship should be understood in practice. This paper has analysed the role played by the CJEU and the ECtHR, and other core stakeholders include the European Parliamant, the Council of the EU, the European Economic and Social Committee and the European Committee of the Regions and civil society organisations who have ‘all welcomed the Commission’s LGBTIQ equality strategy’.(203) The European Commission has taken many actions including appointing an Equality Commissioner, creating a task force on equality and the LGBTIQ Equality subgroup and bringing infringement proceedings against Hungary for violating the EU Rule of Law in relation to LGBTIQ+ rights.(204)  The Commission also prepares progress reports(205) and requires yearly update reports on progress from the European Parliamentary Research Service.(206) The Commission directs the European Fundamental Rights Agency to monitor levels of discrimination across the EU and this has included several reports, the latest of which details the lived experiences of 100,577+ LGBTQIA persons across 30 EU countries in 2023.(207) All of these soft law interventions contribute towards increasing the accessibility of what it means to be an EU citizen.

7. Conclusions

Citizenship inclusivity is essential for the EU in order to increase the demos behind the EU project and to secure its own future. EU citizenship could be a way of ‘potential[ly] overcoming at least some of the shortcomings of traditional, state-centred citizenship, seen to be too exclusive of outsiders’.(208) Rights-based approaches towards citizenship demonstrate progress by the EU, but also limitations as the EU legal conception of citizenship continues to be related to a productivist model. Positive successes include extensive legislation prohiting discrimination against LGBTIQ+ persons, important judgments from the CJEU including far-reaching conceptions of spouse to include same-sex spouses,(209) more extensive rights for rainbow families,(210) and proposals for relevant legislative reforms.(211) However all of these rights-based approaches come with limitations as the EU can only operate within the bounds of its competencies as agreed through successive Treaties.(212) In recent years, the intergovernmentalist model has been emphasised by the Subsidiarity Protocol, which increases Member States’ role in EU legislation.(213) Member States have resisted EU expansion into broader areas of welfare, tax and family issues which remain under Member States’ control.(214) Where EU prohibitions on sexual orientation discrimination are concerned, these have been resisted by more culturally conservative EU Member States.(215) As Coman demonstrates, far reaching CJEU judgments can be difficult to enforce in practice, resulting in knock-on consequences for the EU Rule of Law.(216) When exercising freedom of movement, it remains an essential requirement not to be a burden on the host Member State.(217) This results in a detriment to those who are less able to be economically mobile, including women(218) and, as section 2 has demonstrated, lesbians and gays who continue to experience discrimination when applying for and when at work.(219)

However if a new idea of citizenship is considered not just to be concerned with rights, but also based on accessibility,(220) soft law provisions assist in reaching a wider range of indivdiuals. Soft law enables the EU to set aspirational targets via its LGBTIQ Equality Strategy 2020-2025.(221) A whole range of EU bodies working with community groups and individuals on the ground seek to understand (through data gathering), monitor and aim to improve conditions for lesbians and gays who are EU citizens.(222) Whilst the rise of the populist right in recent years certainly does give pause for thought, the overall sweep of lesbian and gay history within Europe over the last seven decades since its inception documents positive progress.(223) This is not just for individual European nations but the EU itself compared to the first EU bodies established in the 1950s.(224) Some have argued that gender blindness of EU law is ‘part and parcel of how Union citizenship is currently conceived making it difficult to change’.(225) It is important to be realistic and clear that we are some way from achieving European Commission President Ursula Van der Leyen’s vision of equality, described as ‘a Union where you can be who you are and love who you want – without the fear of recrimination or discrimination'.(226)  

However, a new concept of citizenship consisting of not just legal rights but also accessibility for individuals, motivated by increasing soft law aspirations and allowing monitoring for progress, allows greater engagement with lesbians and gays across Europe and offers future hope. We can take encouragement from the EU LGBTIQ Equality Strategy 2020-2025 that a pro-lesbian and gay ‘direction of travel’ has been set.(227) EU soft law provisions set expectations and the EU itself can serve to mobilise social and legal change across EU Member States.