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Repost: Alessandro Marcia, Rainbow Europe or Rainbow Washing? [LGBTIQ+ Equality Strategy (2026-2030)]

High ambitions, limited results

In 2020, the European Commission adopted, by means of a Communication, the EU LGBTIQ Equality Strategy (2020-2025). Symbolically, this was a milestone: a Commission policy document explicitly and comprehensively dedicated to the protection of LGBTIQA+ individuals. This innovation also came during a legislative term marked by the unprecedented appointment of a Commissioner for Equality and the creation of a dedicated Commission unit on non-discrimination and LGBTIQA+ matters.

The Strategy was built around four major pillars: tackling discrimination against LGBTIQ people, ensuring LGBTIQ people’s safety, building LGBTIQ-inclusive societies and leading the call for LGBTIQ equality around the world. Each of these pillars identified a set of legislative and non-legislative initiatives to be achieved within a fixed timeline, thus serving as a roadmap for the Commission’s work over the entire mandate.

From a legal perspective, two legislative proposals stood out. The first one concerned the inclusion of both hate crimes and hate speech against LGBTIQA+ persons in Article 83(1) TFEU. This update would allow the Commission to introduce a proposal for a Directive on minimum rules concerning the definition of criminal offences and sanctions. The second initiative was the so-called “Equality Package”, a proposal intended to harmonise rules concerning parenthood in cross-border situations. This would have mandated the mutual recognition of parental bonds across the EU, including between same-sex parents and their children. Alongside these initiatives, the Strategy stressed the importance of overcoming the stagnation of the proposal for a Horizontal Anti-Discrimination Directive.

These two legislative proposals were built upon two legal bases – Articles 83(1) and 81(3) TFEU respectively – that provide a special legislative procedure, which requires the Council to act unanimously after consulting the European Parliament. Despite the Parliament’s positive endorsement of these legislative initiatives (here and here), both proposals remain blocked in the Council due to the opposition of multiple Member States. Likewise, no progress has been made regarding the Horizontal Anti-Discrimination Directive, which has remained stuck in the Council since being proposed in 2008.

Furthermore, the Strategy also entailed a number of minor legislative initiatives. For instance, Directives 2024/1499 and 2024/1500 extended the remit of equality bodies (agencies in the Member States that support victims of discrimination) to discrimination based on sexual orientation in the field of employment. In parallel, the Strategy outlined some specific rules on LGBTIQA+ rights to be embedded into other pieces of EU legislation (the so-called “mainstreaming”). An example is the Artificial Intelligence (AI) Act adopted in June 2024, which prohibits AI systems using biometric data to determine a person’s sexual orientation. However, while the Strategy proposed extending this provision also to gender identity, this does not appear in the final text of the AI Act.

Against this backdrop, both legislative proposals outlined in the Strategy – which address LGBTIQA+ individuals explicitly and directly – remain blocked in the Council. Similarly, the Member States failed once again to make progress on the Horizontal Anti-Discrimination Directive. In my view, this stagnation mirrors the divergent legal and political approaches of the Member States, as well as the highly politicised nature of LGBTIQA+ rights. In parallel, it seems that small-scale legislative intervention and the mainstreaming of LGBTIQA+ concerns into other pieces of EU law are more likely to be successful. This approach leaves less room for politicisation, while the ordinary legislative procedure (with its qualified-majority voting) allows bypassing the opposition of regressive Member States.

Equality, selectively enforced

Another key objective of the Strategy was to monitor the implementation of EU law by the Member States and initiate infringement procedures in cases where EU law had been breached in relation to LGBTIQA+ rights (see also the latest Implementation Report).

Throughout the timeframe of the Strategy (2020-2025), several regressive laws that target LGBTIQA+ individuals were enacted at the national level. In 2021, for example, Hungary passed a law that restricts access to books and other media that portray Queer experiences. In addition, just a few months ago, the Orbán-controlled Parliament adopted the so-called Freedom of Assembly Act, which enables authorities to classify Pride marches as violations of the Child Protection Act and, as a result, de facto limits the freedom of assembly. In a similar vein, Bulgaria has introduced a law that prohibits the discussion of LGBTQIA+ topics in schools, and, more recently, Slovakia passed a constitutional reform that recognises only two genders (assigned at birth), limits adoption rights to opposite-sex married couples and bans any discussion of Queerness in schools.

Initially, the Commission took a bold stance against Hungary’s attacks on the LGBTIQA+ community. Just three years ago, the Commission referred Hungary to the EU Court of Justice over its “anti-propaganda law”. Notably, besides raising a series of technical violations of EU law, the Commission argued that Hungary had infringed upon the Charter and the EU “founding values” in Article 2 TEU. This allegation has recently been endorsed by Advocate General Tamara Ćapeta. While the judicial enforcement of Article 2 TEU is a highly controversial question among scholars (see Bonelli and Claes; see also Spieker), this case symbolically demonstrated the European Commission’s commitment to protect Queer individuals from attacks on their rights at the national level.

But the very same Commission did not coherently act when faced with similar developments. For instance, some civil society organisations suggested that the Hungarian Freedom of Assembly Act, which also allows police authorities to use real-time AI biometric tools to identify Pride participants, violates the EU AI Act. Yet, the Commission has not taken any action so far. The same inaction can be noticed when it comes to Bulgaria and Slovakia.

In other words: the European Commission is engaging in – what I call – “selective enforcement” of EU law. Specifically, the Commission applies double standards, probably because of political factors such as President von der Leyen’s dangerous reliance on a more conservative-leaning majority, which now also includes political parties from the far-right fringe.

A downgraded commitment

On 8 October 2025, the Commission seemingly renewed its commitment by presenting a new LGBTIQ+ Equality Strategy (2026-2030). But this Strategy does not follow the structure of the previous one. Instead, it is built around three broader, more ambiguous objectives: protect, empower, and engage LGBTIQA+ people.

First, the Commission emphasised its opposition to so-called conversion practices (i.e., practices aimed at “converting” an individual’s sexual orientation or gender identity). This comes as a logical response to the European Citizens Initiative (ECI) that, just a few months ago, gathered over 1 million signatures in order to ban conversion practices at the European level. However, while the ECI suggested an EU-wide ban of these practices by including them in the list of crimes in Article 83(1) TFEU, the Commission did not follow that path. Instead, the Commission will fund a study to analyse the nature, prevalence, and impact of these practices on LGBTIQA+ people. Based on the results of this study, the Commission will supposedly promote a “structured dialogue” and focus on supporting the Member States in banning those practices, highlighting that they play a crucial role to this end.

While whether and how to follow up on a successful ECI falls within the Commission’s discretion, this choice signals caution. The Commission limits its role to that of a simple facilitator of Member States’ action, rather than being an active player in banning these practices (through, for instance, a legislative proposal). To be blunt, Ursula von der Leyen is downgrading her commitment towards the LGBTIQA+ community. Notably, the more conservative-leaning composition of her Commission has led the Union to abandon its role as a central player in protecting and advancing LGBTIQA+ rights, leaving the Member States in the driver’s seat.

Second, the Commission is supposedly committed to overcoming the unanimity blockage in the Council with regards to the two legislative proposals presented as part of the previous Strategy, as well as the proposed Horizontal Anti-Discrimination Directive. The only real innovation in this regard is that the Commission is considering abandoning the proposal of the former Strategy to include hate crime and hate speech in the list of EU crimes in favour of a new legislative initiative based on the existing areas of crime covered by Article 83(1) TFEU. This would allow us to harmonise the definition of offences committed online to include those based on the sexual orientation and gender identity of a person, simply through the ordinary legislative procedure.

Third, the Strategy reiterates that the Commission will continue monitoring the enforcement of EU law by the Member States. However, this stands in sharp contradiction to the Commission’s silence and inaction on the several examples of national laws that directly target LGBTIQA+ individuals.

Conclusion

The Commission’s new Strategy represents a downgraded commitment towards LGBTIQA+ individuals as evidenced by the tools proposed. While the previous Strategy (2020-2025) put an emphasis on legislative intervention and the enforcement of EU law, the newly proposed Strategy focuses more on softer policy instruments, such as recommendations, working groups, and data collection. This is also evident from the language used in the new Strategy: the Commission recurrently emphasises the role of the Member States in protecting LGBTIQA+ individuals. In my view, this shift can be attributed to the more conservative-leaning majority supporting the second von der Leyen Commission and its reliance on far-right political parties.

Many civil society organisations have already argued (here, here and here) that this Strategy is not fit for a society where the rights and freedoms of LGBTIQA+ individuals are increasingly under threat. Over the next five years, the true test will be whether the Commission can translate the Strategy into (at least some) tangible progress towards a “Rainbow Europe”, or whether its cautious approach will ultimately be seen as rainbow washing – a symbolic commitment masking the absence of real change.

The post Rainbow Europe or Rainbow Washing? appeared first on Verfassungsblog.

Interesting Article: From Dialogue to Discord (Lena Kaiser on Verfassungsblog) [CJEU Commission v. Hungary]

A Closer Look on Ćapeta’s Argument on Article 2 TEU

Because Ćapeta relies, inter alia, on significant Charter violations for finding an infringement of Article 2 TEU, she starts her analysis by examining fundamental rights (paras 45 ff.). She finds violations of Article 21, Article 11, Article 7, and Article 1.

In addition, she particularly advocates for the Court’s first-ever recognition of a violation of Article 2 TEU as a self-standing ground (paras. 142). Ćapeta rightly limits herself to the relevant question here – namely, whether Article 2 TEU can be applied as a self-standing ground for action within the scope of Union law – and leaves the broader debate over its autonomous application for a future case (para. 144).

Her Opinion on Art. 2 TEU is divided into two parts: First, she examines the much-debated question of the justiciability of Article 2 TEU (paras. 150 ff.). Specifically, this concerns whether Article 2 TEU can function as a self-standing ground to assess legality within infringement proceedings – rather than merely serve, as often in the past, to interpret or further define legal provisions. The subsequent question is under what circumstances Article 2 TEU may be infringed, with a focus on the development of applicable criteria (paras. 235). While the Member States unanimously supported the general justiciability of Article 2 TEU during the oral hearing – differing only as to whether Article 2 TEU can be applied on its own or concretized by other provisions – their submissions displayed a remarkable diversity of approaches regarding which criteria should be used to establish a violation of Article 2 TEU. In this respect, the Member States found themselves “united in diversity”.

In her discussion of justiciability, Ćapeta begins with a textbook-like explanation of Article 2 TEU’s function as the constitutional identity of the Union’s legal order. Moreover, she points out that Article 2 TEU is a legally binding provision, whose observance – according to Article 49 TEU – is a prerequisite for accession to the Union. Furthermore, in Repubblika, the CJEU established the principle of non-regression, according to which Member States – precisely because of their decision by choice to join a society and a Union based on Article 2 TEU – are obliged to maintain at least the level of protection of these values as existed at the time of accession (paras. 181 ff.). Ćapeta correctly argues that this principle of non-regression is not limited to the value of the rule of law but rather constitutes a value-based prohibition of regression, which applies equally to the values at issue here, such as human rights and equality (para. 183). After addressing arguments often misleadingly abbreviated in the literature – such as the claim that Article 7 TEU precludes justiciability (para. 196) – Ćapeta also finds, convincingly, that Article 2 TEU is justiciable and can therefore serve as a self-standing ground (para. 233).

Ćapeta then poses the central question, which lies at the heart of the case: Which standards and criteria indicate a violation of Article 2 TEU? She sharpens this issue by asking how it is to be assessed whether a Member State has crossed the “red lines” (para. 234). Precisely because Article 2 TEU allows for constitutional pluralism, the boundaries of what has been agreed upon must be clear to the Member States. Ćapeta approaches this question abstractly first (para. 237): while rejecting criteria such as the number or severity of violations, she considers that the key criterion for finding a breach of Article 2 TEU is a “negation of values”. The number of infringements may, but does not necessarily have to, indicate a violation of Article 2 TEU (para. 248). She argues that violations of, for example, Union fundamental rights can still reflect constitutional dialogue, where values and their interpretation are negotiated. In her view, only a “negation of values” — not interpretative differences, even if they entail legal breaches — constitutes a violation of Article 2 TEU (para. 253).

Ćapeta ultimately concludes that, in the case at hand, there is no longer any legitimate constitutional dialogue, but rather a degree of discord so severe that it amounts to a “negation of values” (para. 255). The denial of equality for LGBTI persons, which forms the basis of all the breaches, is not something over which legitimate debate within constitutional dialogue can persist; instead, it amounts to a violation of Article 2 TEU – specifically with respect to human rights, human dignity, and equality (para. 273).

The Ethical Dimension in a “good society”

What stands out is Ćapeta’s reference to the idea of a “good society” (paras. 157, 177), whose vision is expressed in Art. 2 TEU, and which she invokes in the context of the Union’s constitutional identity. Obviously, this assessment contains an ethical dimension, which inevitably raises the question of what “good” actually means. The reason we find such an approach in Ćapeta’s Opinion lies in the specific nature of the case: this one does not focus on the rule of law – a value supported by extensive case law. Rather, the case concerns LGBTQI rights and the stigmatization of a minority, a context which (1) involves values that have not previously been central in the Court’s jurisprudence, and (2) touches a domain in which the Hungarian government itself has justified its actions as promoting the “good life”.

The narrative then also explains Ćapeta’s adoption of the term “good society”. By describing society as “good” – in reference to the European Society set out in Article 2 (2) TEU – she deliberately engages with this theme and offers a counter-narrative to the model promoted by the Hungarian government.

This ethical dimension is problematic for at least two reasons: Firstly, the use of the term “good” plays into the hands of those who consider Article 2 TEU to be non-justiciable due to its vagueness and abstractness, and who accuse the CJEU of using its case law to enforce a “European way of life” and of abusing Article 2 TEU as a homogeneity clause. The justiciability and legal force of the values in Article 2 TEU have long been controversial, not least because the term “values” could be understood as implying a primarily moral or ethical content. Even though the CJEU’s judgment on the rule of law conditionality has now confirmed at the highest level that Article 2 TEU is legally binding, the use of the word “good” risks reigniting old controversies.

Secondly, the assessment of what is “good” is inherently selective and unpredictable. While a case-by-case approach to Article 2 TEU helps avoid overly specific standards and maintains its character as a result-oriented norm, the reference to the term “good” further increases this selectivity.

Constitutional Dialogue versus Negation of Values

Equally striking are the distinct terms “negation of values” and “constitutional dialogue”, which Ćapeta employs in developing criteria for Article 2 TEU violations and distinguishes from one another.

She rightly observes that values are negotiated within a constitutional dialogue (para. 203) and that Article 2 TEU allows for different interpretations. This is also reflected in the case law of the CJEU, which considers Article 2 TEU as imposing only obligations of result. Although the Court has, in the exercise of its jurisdiction, necessarily given Article 2 TEU more substance this pluralism is also evident, for example, in the principle of non-regression, which does not establish concrete requirements for the Member States but, with its particular temporal reference point and reliance on each national legal order, has a pluralism-preserving effect.

Nonetheless, her choice of criteria is problematic: For her, the “negation of values” is the only relevant criterion, distinct from legitimate constitutional dialogue – a dialogue that may involve legal breaches, but, in the absence of negation, does not amount to a violation of Article 2 TEU. While the latter point is convincing, Ćapeta’s approach merely shifts the problem: the term “negation” is somehow interchangeable with “violation” and does not provide any further requirements or a set of criteria that would indicate such negation. According to Ćapeta, a considerable number of violations may indicate a negation of values, but do not necessarily do so. Likewise, serious violations are not, in and of themselves, sufficient indicators (para. 241).

The case for “systemic deficits”

The question is: Are we expecting too much? Certainly, the Court is under a great deal of pressure. Admittedly, this question represents both a significant, but also a minimal step forward. The underlying necessity stems from the principles of legal clarity and certainty: when a law is enacted, a standard is required to determine whether and when it has been infringed. This is a legitimate expectation that the Member States are entitled to have.

But this expectation may be better met with other criteria. Particularly, the conceptual notion of “systemic deficit” may offer an effective framework for identifying a ”negation of values”, and thus a violation of Article 2 TEU. What makes this concept appealing is its multi-layered nature, allowing for examination across various dimensions. While Ćapeta rightly notes that multiple infringements alone do not necessarily establish a breach of Article 2 TEU, the concept of systemic deficit provides various elements – such as the number and intent of violations, as well as a temporal and qualitative dimension that may be determined by reference to the essence of the values – to ensure legal certainty. Generally, no single criterion is sufficient to establish a violation of Article 2 TEU; rather, such a finding should be based on a holistic assessment and contextualization.

The notion of a systemic deficit can be understood as a mesh of interrelated elements: the more intense and intentional the infringements, and the more the violated legal norms can be seen as expressions of the essence of the values, the more likely it is that there is a negation of values. Under such circumstances, the space for legitimate constitutional dialogue – formed through the Union’s foundational and continued consensus in Art. 2 TEU, which itself is the product of deliberate choice – shifts into discord. This act of choice is also reflected in the accession of each new Member State under Article 49 TEU, which justifies not only the conditions required for the functioning of the Union’s legal order, but also the establishment of the principle of non-regression (para. 177). Ćapeta effectively recalls this choice and the Member States’ voluntary decision to join the Union (para. 155).

In any case, the suspense remains as to which arguments the CJEU will draw upon for its decision in full court.

The post From Dialogue to Discord appeared first on Verfassungsblog.

EU official condemns Hungary’s restrictions on LGBTQ+ content