The potential of European Union law to further advance LGBTQ+ persons and same-sex couples’ rights

Hamilton, Frances (2020) The potential of European Union law to further advance LGBTQ+ persons and same-sex couples’ rights. In: Same-Sex Relationships, Law and Social Change. Taylor & Francis, London, pp. 11-32. ISBN 9780367076092

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Abstract

This chapter considers, in light of recent case law, the potential of European Union (EU) law to further advance LGBTQ+ persons and same-sex couples’ rights. The EU system offers numerous opportunities in this respect due to the manifold influences of the EU concept of citizenship resulting in extensive free movement provisions and non-discrimination requirements as further enhanced by strengthening ties between the EU and the Council of Europe. The European Court of Human Rights stresses a lack of consensus on claims for same-sex marriage between its divergent 47 Member States leading to a wide margin of appreciation. In contrast, it is argued that the Court of Justice of the EU gives concerns about subsidiarity less prominence than over-riding EU law imperatives such as free movement of persons and non-discrimination provisions. All of these points, together with more effective EU law enforcement provisions, provide impetus and lead to opportunities for the EU further to develop rights for LGBTQ+ persons and same-sex couples. The possible impact of Brexit, where this would affect free movement of persons, means that UK LGBTQ+ persons and same-sex couples would not benefit from the possibilities of future development of EU law.

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