Democracy and Human Rights-Not for Gay People?: EU Eastern Enlargement and Its Impact on the Protection of the Rights of Sexual Minorities

Abstract

Gays and lesbians in Central and Eastern European countries (CEECs) did not have any rights under communism, where homosexuality had either been a criminal offence or, at best, the official attitude towards it could be characterised as repressive tolerance. The development of civil rights and freedoms, which started after the collapse of the communist regimes, did not immediately result in a break through in the sphere of gay rights: "[i]n the midst of the multifaceted transformation of [the CEECs], the status of gay and lesbian residents has undergone varied and dramatic changes and is still in flux." Many hopes for change in this situation were related to the process of enlargement of the European Union (EU) and were fuelled by the belief that the EU would ensure that no country turning a blind eye to the problems related to gay rights and allowing discrimination on the basis of sexual orientation would be permitted to join. As it turned out, these hopes were only partly justified. The actions of the EU were timid, ill-focused, and stopped short of realising the potential for change offered by the legal context of enlargement preparation. Such developments can be explained by the limited nature of Community competences in this field, especially true at the very beginning of the enlargement process and which were certainly influenced by the questionable gay rights record of the European Court of Justice (ECJ). The EU did not decouple the pre-accession human rights monitoring of the candidate countries from its own internal incompetence in the field of gay rights and the limited scope of the acquis in this area. While the situation improved slightly over the last few years preceding the enlargement, it is clear that the current adopted practice is unsustainable and that the EU should seriously consider allowing gay rights to play a more prominent role in the course of the preparation of future enlargements.