To: Helena Dalli, European Commissioner for Equality
Brussels, 20 March 2020
Subject: Protection of rainbow families and their children as regards their freedom of movement
Freedom of movement is a fundamental right and needs to be guaranteed for all EU citizens, regardless of their sexual orientation or gender identity. Especially children in rainbow families must be fully protected from a situation of legal uncertainty and emotional limbo created by the interpretation and application of uneven rules across the European Union.
EU citizens and their family members have the right to move freely and live in another EU country. This very same right is appallingly denied to rainbow families and their children in some member states, where national and local authorities refuse to recognise their family status – as this has already legally been established in another EU Member State – and deprive them of their fundamental rights which they derive from EU law.
This legal patchwork creates a situation in which same-sex spouses and their children are less protected than different-sex spouses regarding parental rights, the citizenship of their children, tax credits, access to health care, parental leave and inheritance. Differences in legal gender recognition also negatively impact on trans parents moving to Member States without similar mechanisms, resulting in difficulties or impossibility to recognise their parenthood. In some cases, these parents and their children receive no protection and their families are not even recognised to exist.
We believe that every family should continue to exist when crossing EU borders.
In itsComan decision, the CJEU established that, for the purposes of the grant of family reunification rights, same sex-spouses have the right to move together across the internal boundaries of the Union, regardless of different national laws on same-sex marriage. By analogy, this right includes the freedom to return to the country of origin and any other country in the EU, even if the law of such country does not recognise same-sex marriage.
We therefore call on the European Commission, as the guardian of the Treaties, to:
- Put an end to the systematic violations of European citizens’ fundamental rights and to ensure the implementation of the Coman case:
- By issuing a Communication clarifying that 1) EU free movement law also requires the extension of recognition of same-sex marriages for all legal purposes (not just for family reunification rights) and 2) that when exercising free movement rights, familial ties of Union citizens (e.g. as spouses, parents, children) are recognised, as these have been legally established in another legal system, irrespective of whether they are same-sex spouses;
- Assist Member States in adopting laws that recognise the free movement of public documents and mutual recognition of the effects of civil status records in the European Union:
- In accordance with Article 21(2) TFEU, the Commission should propose a Directive or Regulation requiring recognition of marriage certificates, registered partnership certificates (if the registered partnership is substantially similar to a marriage), birth certificates (including information about legal gender or the parentage of a child), adoption certificates, and legal gender recognition certificates issued in one EU Member State as valid for all purposes of national law in all other Member States. This legislation would not change national family law or civil status law in any Member State
- The Commission should equally ensure that children’s right to maintain contact with both parents is respected in cross-border cases, as required in the Brussels IIA regulation.
- Ensure that the best interest of the child is always a primary consideration in all decisions concerning children across all EU Member States, and the legal ties between children and their same-sex parents – as these have already been legally established in another country – are maintained when the family moves to the host EU Member State as is the case in situations involving different-sex parents;
European citizens and their rights cannot wait any longer.
Heidi HAUTALA, EP Vice-President
Heléne FRITZON, Vice-President, Socialists & Democrats Group
Frederick FEDERLEY, Vice-President, Renew Europe Group
Frédérique RIES, Vice-President, Renew Europe Group
Alice KUHNKE, Vice-President, Greens/European Free Alliance Group
Ernest URTASUN, Vice-President, Greens/European Free Alliance Group
Gwendoline DELBOS-CORFIELD, Vice-President, Greens/European Free Alliance Group
Terry REINTKE, Vice-President, Greens/European Free Alliance Group
Sira REGO, Vice-President, European United Left/Nordic Green Left
David CASA, EP Questor
Marc ANGEL, Co-Chair, LGBTI Rights Intergroup
David LEGA, Co-Chair, Children’s Rights Intergroup
Caterina CHINNICI, Co-Chair, Children’s Rights Intergroup
Hilde VAUTMANS, Co-Chair, Children’s Rights Intergroup
Saskia BRICMONT, Co-Chair, Children’s Rights Intergroup
Malin BJÖRK, Vice-Chair, LGBTI Rights Intergroup
Maria WALSH, Vice-Chair, LGBTI Rights Intergroup
Sophie IN’T VELD, Vice-Chair, LGBTI Rights Intergroup
Alexandra GEESE, Vice-Chair, Children’s Rights Intergroup
Dragos PÎSLARU, Vice-Chair, Children’s Rights Intergroup
Javier MOLENO SANCHEZ, Vice-Chair, Children’s Rights Intergroup
Laura FERRARA, Vice-Chair, Children’s Rights Intergroup
Laurence FARRENG, Vice-Chair, Children’s Rights Intergroup
Alex AGIUS SALIBA
Antoni COMÍN I OLIVERES
Izaskun BILBAO BRANDICA
Kim VAN SPARRENTAK
Mónica Silvana GONZÁLEZ
Petra DE SUTTER
Rosa ESTARÀS FERRAGUT