(Photo: cinocino/Flickr)

By Alessandro Valera.

Gay rights have quickly moved from being an issue of fringe political activism to become a mainstream political issue. When in 2001 (only nine years ago!) the Netherlands became the first country to grant same-sex couples the right to get married and adopt children, many abroad looked and this as the latest eccentric Dutch approach to social policy.

As with legalized marijuana or prostitution on-display, this was expected to remain a peculiarity of Europe’s liberal Dutch heart. Contrary to expectations, the last decade has witnessed the rapid expansion of same-sex unions regulations across the continent. At the moment, in a majority of EU countries (14 out of 27) gay couples are given the chance to celebrate their permanent unions.

In five EU countries (the Netherlands, Belgium, Spain, Sweden and Portugal) as well as in Norway, gay marriage is a possibility and couples can enjoy the same rights as straight married couples, including –except for Portugal– the option of adopting children. Other countries, like Germany and the United Kingdom, have created a new form of union available only to same-sex couples. In the UK, Civil Partnerships are practically equivalent to marriage in terms of the rights and responsibilities granted. A third group of countries regulates cohabitation (of both same-sex and opposite-sex couples) in a number of different forms, such as the PACS in France. Slovenia, Hungary and the Czech Republic are the only Central and Eastern European countries to grant some form of union to homosexual couples.

Italy, Ireland and Greece, on the other hand, are the only countries of “old Europe” who don't. A report by the EU Agency for Fundamental Rights has highlighted how any move towards greater protection of gay people and greater extension of rights to gay couples tends to result in more positive attitudes by the general population towards this group. Rather than greater acceptability leading to more rights, it seems that granting rights results in greater acceptability, largely due to “normalization” of same-sex families. Indeed, in countries where homosexual couples have been legally protected, businesses and employers have followed suit, with partners enjoying the same perks that wives and husbands of heterosexuals workers enjoy. Due to the economic interconnectedness of the EU countries, the phenomenon of same-sex couples needing to relocate to another EU country that does not recognise their union has become widespread. In 2009, the Swedish presidency of the European Council tried to push forward proposals under the Justice and Home Affairs pillar, which included the recognition across EU countries of all forms of marriages and civil unions. However, what came to be called the Stockholm Programme was amended and ratified without the inclusion of this “controversial” element.

Despite the lack of legislation, this issue is becoming more prominent, as same-sex couples facing problems of recognition in other countries went from being a handful in the early 2000's to now constituting a sizeable group of EU citizens who do not fully enjoy the right of freedom of movement and freedom to work across the Union. The EU charter of fundamental rights makes it clear that “the right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights”. This article was probably written as a caveat to future attempts to get EU-wide same-sex unions approved. However, there is plenty of room to demand – if not the full recognition of gay relationships in every EU country – at least an EU-wide recognition of same-sex unions sanctioned in those member states that allow them. Something that would have a snowball effect on generalising civil liberties in all European countries. Failing to allow married same-sex couples to "transfer" their status from one European country to another violates the basic premise of "European citizenship", as well as a series of other articles of the legally-binding EU Charter of Fundamental Rights.

Article 9 states that “everyone has the right to respect for his or her private and family life”. At the moment, the lives of many couples and their children are not respected, if they cannot move to an EU country and continue to see their family recognized as such. Article 15 states that “Every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State”. As highlighted earlier, while technically enjoy that right, many EU workers cannot practically opt for a job in another country, in which their partner and children would not be legally recognized. Article 24. 3 states that “Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests". At the moment, children with same-sex parents can only be registered as offspring of one of their parents in countries like Italy. This has often resulted in the other parents being denied legal rights over their children when they move to those countries for reasons of work. Article 33 states that “the family shall enjoy legal, economic and social protection”. But that’s really hard if one’s husband and children are not legally recognized, socially protected and do not form an economic unit.

Getting the EU to recognize all same-sex partnerships in all member states may affect only a few thousands Europeans in a union of 500 millions. However, those familiar with theories of integration, will remember ‘the spill-over effect’, by which integration in one policy area will inevitably lead to further integration. As it happened in Canada, the legalization of same-sex marriages in some provinces created a constitutional quagmire, as married couples would return to their provinces of origins and demanded their unions to be recognized. There was no option left for the Supreme Court of Canada but to declare gay marriages legal in the whole country. This can give us hope that in the European Union after the Lisbon Treaty small changes can lead to much bigger achievements in the future.

If we work to get same-sex unions recognized across member states, it won’t be long before this will lead to a situation in which institutionally homophobic countries will have no option left but to recognize the family in every form that it comes in contemporary Europe.