LGBTQ+ rights in the EU Enlargement process: a 'rainbow Europe'?

In light of Ukraine's recent application to join the European Union, we look at how LGBTQ+ rights are impacted by the Enlargement process.

Split screen of a EU flag and a rainbow flag. This article is abut LGBTQ+ rights in the EU Enlargement process.
Image: Unsplash

After the Russian invasion of Ukraine, President Zelenskyy signed an official application for the country to become a member of the European Union. How could the EU Enlargement process change the lives of Ukrainian LGBTQ+ citizens and impact their rights?

While the situation in Ukraine continues to be dire, EU leaders gathered for a European Council summit to discuss Ukraine’s application to join the Union on March 11. Although they accepted the country’s application, which will be reviewed in the upcoming months, and pledged support for Ukraine and people fleeing the war, they stopped short of granting a fast track to EU membership. Indeed, some members were strongly opposed to having Ukraine become a member overnight. This is because the EU Enlargement process is a complex and lengthy commitment. Countries like Serbia and Montenegro have been candidates for years and still have a long way to go before they can become members of the Union.

There have been various waves of Enlargement, through which countries have been invited to join the European Union. The last one was in 2013, when Croatia officially became a member after being granted candidate status in 2004. Why did it take so long? Because in order to join the EU, countries need to comply with certain criteria to ensure a degree of protection against the risk of new entrants becoming politically or economically burdensome for existing members. The negotiations between the European Union and candidate countries revolve around the ‘acquis communautaire’, which is the body of EU legislation that candidates need to implement at national level if they want membership.

Among the many requirements that a candidate needs to fulfil include insuring that the country has stable institutions guaranteeing democracy, the rule of law, human rights and protection of minorities, as well as a functioning market economy. For these reasons, some EU member states expressed concerns over the idea of opening an accession procedure with a country that is currently at war.

Because of the commitment to advancing the protection of minorities and human rights, LGBTQ+ rights have acquired a special place in the Enlargement process. They officially entered the process in 2000 with the adoption of directive 2000/78/CE by the Council of the European Union, which prohibits discrimination on the basis of sexual orientation at work. In 2005, the European Commission added a new chapter, number 23, on the judiciary and fundamental rights to the acquis communautaire, which explicitly states the requirement to protect LGBTQ+ rights in the Enlargement.

Every year, the European Commission publishes an annual report to monitor how negotiations with each candidate are progressing and in the comments to Chapter 23, it addresses the situation of the LGBTQ+ community in the country in question. Other than considering the circumstances from a legislative point of view, particular emphasis is placed on the ability of a state to guarantee the organisation of safe Pride events.

Pride has acquired a special place in these reports because it is considered a “litmus test” of the status of LGBTQ+ rights in the countries that wish to progress in the EU Enlargement process. The fact that such importance is ascribed to Pride shows how the EU’s requests in matters of LGBTQ+ rights go beyond the content of the acquis.

An interesting aspect to consider is that the aspirations of the EU for the protection of LGBTQ+ rights in the process of accession seem to be far greater than what some member states can offer. For example, because of the negotiations, candidate countries like Serbia had to implement legislation that protects LGBTQ+ people from hate crimes, something that some member states, Ireland included, still lack.

Some have argued that the EU institutions’ ability to further the protection of LGBTQ+ rights in candidate countries seems to be far greater than it is in member states. An emblematic example of this is what has been happening for some years now in Poland with the so-called LGBT-free zones.

The EU’s effectiveness in progressing LGBTQ+ rights in candidates is linked to the fact that countries are motivated to comply with the criteria for accession by the prospect of membership. Once that motivation is gone, things start getting more complicated. Some countries have experienced so-called “homophobic backlashes” after accession to the European Union, because LGBTQ+ rights started to be perceived as something that was imposed from the outside, namely EU institutions, and that was not compatible with the country’s national identity and values. This happened in Poland, Hungary, Lithuania and to some extent also in Croatia.

If compared to the global situation, it is true that Europe is the region where LGBTQ+ rights are the most advanced. However, the idea of a ‘rainbow Europe’, that is often associated with the EU institutions, might be misleading, in that it suggests that the whole continent is a safe and happy place for the queer community.

While we still don’t know how and when Ukraine will progress in its journey to EU membership, we can only hope that the EU’s power to influence rights beyond its borders will prove strong enough to result in increased protections for LGBTQ+ folks.

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