Out-DATA-ed: Untracked Testimony of Sexual and Gender Diversity Discrimination in the European Union

Andreas Holzinger wrote “Out-DATA- ed: Untracked Testimony of  Sexual and Gender Diversity Discrimination in the European Union” as part of the 2016 Humanity in Action Diplomacy and Diversity Fellowship. The research behind this article was conducted in summer 2016. Some of the norms and laws this article addresses may have changed meanwhile.

The European Union (EU)—member states and European institutions alike—is effortlessly data-less: slow and unambitious internal policy actions merely promote micro steps towards increased protection of lesbian, gay, bisexual, transgender, and intersex (LGBTI) populations (1). More disaggregated data collection and dissemination can be understood as one of the quantifiers of commitment and effective action. In this article, I argue for the necessity of focusing on data for minority rights protection. In addition to the benefit of legal advancement, disaggregated data is paramount in understanding the lived experiences of minorities and their needs.

At the United Nations (UN) General Assembly in New York City in November 2016, European countries pushed for a mandate to globally monitor violence and discrimination based on sexual orientation and gender identity (SOGI). The main goal was to obtain more recognition of human rights around sexual and gender diversity, while simultaneously pledging for a UN-LGBTI inclusion index. Yet when looking at how the EU treats protection domestically, a different picture unfolds: few consistent data is available on how the lives of LGBTI people are affected by discrimination and hate crimes. Except for the realm of public health, and especially within research on HIV, little data has been collected and disaggregated. In fact, the only EU-wide, yet non-representative, survey that exists dates to 2012 and shows staggering rates of up to 50% of LGBT people having recently faced discrimination (2).

Why this gap in coherence when it comes to preventing discrimination of LGBTI people? Increasing disaggregated data-collection efforts might serve as an indicator for just that: the effort and the will to identify problems and shortcomings. Data collection is key for policy implementation and illustrates the urgency to act. As a corollary of identifying clear challenges, funding would flow more efficiently to tackle the specifics of the field. While the EU defines the recognition of the rights of LGBTI people as a criterion for EU adhesion  and has agreed upon comprehensive foreign policy LGBTI guidelines,  why not start with the obvious and push for EU-wide data collection to more effectively confront the faced challenges? (3) (4)

Recognizing that sexual orientation motivates discrimination is the first step to allowing for data collection and as a corollary for targeted anti-discrimination action. Yet, EU-level protection against hate crimes based on sexual orientation are limited to certain sectors, such as employment,  while gender identity is not even recognized as a ground for discrimination (5).

Structural Discrimination in Rights-Promoting, Data-less Europe

EU countries show large discrepancies regarding policies and practices, yet common legal standards are vital. In fact, societal change is shaped by legislative action. If the gap between societal and political standards is not too wide, standard-setting through policy is effective (6). Legal recognition and protection frameworks still vary considerably among EU member states. Yet even under legal protection, LGBTI populations might experience a different reality in their daily lives. ‘Might,’ because there is a big lack of EU-wide data.

Data can be useful in highlighting some invisible forms of institutionalized discrimination. As such, the concept of homonegativity (and trans- or intersex-negativity alike) alludes to societies that have negative attitudes towards homosexuals and have already accepted or ingrained some of these attitudes up to the point where discrimination is not visible. Some LGBTI people have internalized such negativities instilled through heteronormative discourses and images within society, for example in school and while growing up, that only certain ideas of couples and gender expressions are acceptable.

Therefore, the EU should consider improving its efforts to comprehend where discrimination takes place structurally; we are not talking only about countries where homophobia is traditionally higher, such as Poland or Hungary, but also about France and Germany that are falling behind in ensuring that LGBTI populations are sufficiently protected.

In the United States, The Williams Institute UCLA School of Law specializes in LGBT people and collects data on them – highlighting crucial studies on homonegative societies and data sets with alarming numbers on homelessness and suicidal thoughts and attempts related to LGBT discrimination. Such efforts are unparalleled by the EU. Most demands by civil society for data or funding in the EU are directed elsewhere by governments, such as high-profile advocacy work abroad (7). Yet, it is the government’s responsibility to release transparent and accessible data volumes that allow for advocacy and policy action. According to the United Nations Children Fund (UNICEF) Director of Data Research and Policy, Jeffrey O’Malley, the private sector can be a useful addition in improving business anti-discrimination standards, especially given that a fifth of all German and French LGB people report having experienced discrimination on the job or while job hunting (8).

Data is Power: Legitimate Criticisms Need to be Backed Up by Internal Consistency

Although data-driven decisions are highly desirable, O’Malley states that, at best, data-informed decision making can be continuously expected on policy-making fronts (9). Data disaggregation globally has received a push through the Millennium Development Goals, and now much more is expected from the global development Agenda 2030 of “leaving no one behind.” Within the UN context, a call for a global research approach is expected to be launched to feed the LGBTI Inclusion Index (10). The index is geared mainly towards improving protection in the Global South. Yet the EU falls behind its own goals by not being able to achieve the required LGBTI research infrastructure. If an improvement of LGBTI protection and inclusion is aimed at on a global scale, it is paramount that the EU steps up fast and effectively to its own exigencies. In failing to do so, criticism should be expected over the gap between foreign policy requirements and the shortcomings of a domestic agenda on LGBTI protection policy.

The measurements of the Inclusion Index focus on political and civic participation, economic well-being, education, and health, as well as personal security and violence. Despite pilot projects in the next two years, like in health (HEALTH4LGBTI), some EU member states still perpetuate institutionalized discrimination, such as unaddressed, increased challenges and barriers in the realms of education and health, as exemplified by a systemic lack of data. It is important to note here that LGBTI is not an exceptional minority group. The fact of a society neglecting or denying protection to a certain minority group reflects its overall flaws in providing adequate protection to citizens and other minorities. The collection and dissemination of scientific data is needed to outline actual inclusion efforts and direct policies, since many indirect and invisible forms of discrimination are not registered.

Data Informs: Collect, Identify, Disseminate, and Collaborate!

Existing data is insufficiently used and hardly disseminated, per several LGBT experts in the EU (11). Once properly disseminated, data can be helpful in effectively monitoring further anti-discrimination efforts. Even though qualitative and quantitative data combined is not apolitical, objective, or perfect, it can identify issue areas, state importance, and effectively prove the existence of sexual orientation and gender identity-based discrimination. As Human Rights Officer at the UN Office of the High Commissioner for Human Rights Fabrice Houdart explains: “Once quantified data is available [and disseminated], there is no denying existing homophobia and transphobia in the EU anymore.” (12)

The European Region of the International LGBTI Association (ILGA-Europe) legitimately pointed to the lack of clear strategies and targeted efforts, despite a “List of Actions” put forth by the European Commission (EC) (13). The list aims at actions to fully comply with Article 21 of the European Charter of Fundamental Rights, prohibiting any form of discrimination inter alia on basis of SOGI. This list is, however, lacking new actions and any ambition. Certain efforts by the EU Agency for Fundamental Rights (FRA) can be seen, for instance, on the rights of intersex people, which are still highly under-researched with little policy enacted so far. Including some LGBT questions in the Eurobarometer survey is a first step, especially since the results showed alarming figures around violence and discrimination in several EU states. Thus, data is needed to identify more clearly where and how discrimination occurs.

At the NGO level, the available data points at disquieting facts. Transgender Europe is one NGO that collects data on different institutions in place where pathologization, sterilization, or gender-reassignment therapy are requirements for trans-populations. The same organization reports on violent crimes against trans people through the Trans Murder Map, where Italy, for instance, has registered 34 murders of trans people in the last eight years alone (14).

Nonetheless, NGO datasets and testimonies need to be complemented by EU-wide data to unveil the necessity to protect vulnerable populations. The German Federal Criminal Police Office states in an email on November 8, 2016 that they do not collect data on cases regarding discrimination or violence in the realm of homo- or transphobia (15). The EU also does not oblige countries to recognize SOGI as a motive in criminal law, therefore hate crimes oftentimes go unnoticed and are not accurately identified as a category of its own. Certain countries like France even have legal provisions in place, due to a fear of communitarianism, that limit data collection in many forms (16).

There is a gap of substantial data proving that discrimination is institutionalized. Yet, reports state that certain minority groups face higher challenges when accessing institutions, such as the judiciary, or while operating within them (17). The limited data that exists, including European public opinion surveys, showcases higher vulnerability: 88% of Poles want homosexual people to have some of their rights denied (18). Luckily, within the public administration some decide to move ahead, according to an interview with a state-level police official in Germany: “Statistics are needed in order to be able to render the phenomenon visible.” (19) Furthermore, the official acknowledges that the internal requirement for state police departments to register such data is probably not applied. Even Berlin, commonly known as one of the most LGBTI-friendly cities in the EU, registers between 80 and 132 homophobic and transphobic assaults yearly as hate crimes, while the actual figure is estimated to be much higher still. Such insufficient data on crimes against LGBTI people limits funding that is earmarked for specific protective actions by states.

Data is Money: Can Data Guide Funding?

A link between the increase of disaggregated data and funding seems logical, yet an underlying causality is hard to establish. An intuitive connection suggests that not only does the overall level of resources increase due to the identification of specific challenges in the lived experiences of LGBTI populations, but prioritizing and targeting specific causes are being allowed for through more disaggregated data as well.

More alarming data on struggles for civil rights in countries that highly praise their international human rights and dignity policies are being uncovered, as implied by the EU-LGBTI survey by the FRA from 2012, which reported a high prevalence of discrimination and hate crimes with 35% of individuals reporting being attacked or threatened with violence from 2007 through 2012 despite national protective legislation. (20) According to the Eurobarometer 2015, discrimination on grounds of sexual orientation and/or gender identity has risen by over 10% to now 58% and 56% respectively and is thus much more widespread than in 2012 (21).

Establishing a mechanical link between increased data within the EU and augmented funding proves difficult, because of the fragmentation of European institutions and the lack of consistency and coordination between different policies and organizations. Cross-sectoral challenges such as bullying are not addressed collaboratively, and hence funding streams are not easily linked to sub-groups of minorities. Additionally, the regulative budget framework is decided for a seven-year period. After the FRA survey, an explicit inclusion of equality mainstreaming in the budgetary frame for 2014-2020 suggests a brighter outlook. The European Social Fund has allocated roughly a fifth of their budget generically to social inclusion for this period. The link between new data and an inclusion of the issue in the budget framework can be made, yet remains tacit. Nonetheless, LGBTI activist Joël Le Deroff states that calls for projects have been showcasing certain new “inclusion-phrasings” after the FRA data appeared, which makes this intuitive link more viable (22). What is more, he states that among civil servants in the EC, LGBTI is becoming increasingly more mainstreamed than prior to the FRA survey.

Not researching LGBTI populations is essentially institutionalized heterosexism in policy, as a lack of research and data also has some implications for the lack of funding, for example, when it comes to health policies. Without an awareness of the specific challenges faced by trans or intersex people for instance, health policy makers cannot administer or fund projects or provide resources for health professionals to be informed about treating SOGI minorities without perpetuating stereotypes (23).

The FRA took a first step with their report on public authorities in the EU and its handling of LGBT issues. The report suggests that prejudice and negative social attitudes constitute a primordial challenge to effective policy action. It is essential that objective information on SOGI issues is included not only in school curricula,  but also in trainings for professionals in law enforcement, healthcare or public service more broadly (24) (25). Obviously, more specific data is needed to comprehend exactly where and to what extent discrimination occurs. Extrapolating from a demographic study in France in 2011, we see that half of the vulnerable populations live in less urbanized areas,  where discrimination and forms of homonegativity (or more inclusively, SOGI-negativity) is expected to be much higher than in the urban areas (26). If no data is disaggregated for LGBTI and other minority groups on the rural-urban spectrum, funding cannot be strategically allocated and anti-discrimination projects will lack effectiveness.

Data has Limits: Awareness of its Perils and Shortcomings

When collecting data, minority populations such as LGBTI communities face certain dangers regarding data literacy or anonymity (27). Data needs to be authentic and thus must come from LGBTI populations to reflect their lived experiences. Local actors and politicians, therefore, need to show leadership in inclusive data collection (28). There is a need for culturally sensitive  and trustworthy relations with survey-takers (29). What is more – discrimination is not always consciously visible; oftentimes, minority populations are not aware of what forms of discrimination might have already been internalized. Hence, big data or experimental approaches to data collection could be a new option for gaining insight into lived experienced of LGBTI populations (30).

When working with the private sector to increase data, it is crucial to respect the concern for privacy of LGBTI people since they are at-risk populations. Otherwise, violence and discrimination can be personalized and targeted, as has occurred due to WikiLeaks information available and the scandal caused by a journalist during Rio’s Olympic Games this summer. In both cases, people’s names were made public with unforeseeable consequences for the individuals, as being LGBTI or perceived as such is a criminal offence in numerous countries (31). Data shall thus enhance awareness and understanding while ensuring the safety and protection of those providing information without putting anyone at increased risk.

There are two problems associated with the collection of data around hate crime by the police: first, many people do not dare to report crimes—with trans populations especially showing low levels of trust when dealing with law enforcement—while reports point at several cases of discrimination by police officers when trying to report crimes (32). Second, the recognition of the crime as a hate crime or as its proper, bureaucratic registration—which regards the listed motive of the perpetrator—is often lacking in law enforcement or in the court system (33).

Moving Forward: More Data Equals More Inclusion

Despite the new list of action by the European Commission (EC) to advance LGBTI equality, the data-less Europe is testified as a “systemic failure to deliver on human rights.” (34) Despite needing to unite different politics and stances on LGBTI rights recognition, the EC and EU need to step up their efforts to be seen as an internally coherent actor of forward-thinking policies in a context of rising populism in the West and beyond. It is not only the EU that should be under scrutiny for being out-data-ed, but also to a similar extent its member states. And as stated before, it is also countries like Germany that do not push hard enough to ensure EU directives see the light. They also will have a difficult time trying to incorporate countries that do not want to have more transnational antidiscrimination directives (35).

Needless to say, data is not the only necessary factor of successful protective measures and resource allocation to prevent discrimination. Bringing local expertise to the EU and inviting LGBTI activists from different member states is convincing when it comes to increasing funding, as a storytelling narrative makes data visible and urgently actionable. Yet, the first step to proving increased efforts is to be willing and ready to comprehend where we stand on levels of violence and discrimination in the EU – and data does just that.

The EU should take internal minority groups’ struggles more into account. A rights-promoting EU foreign policy is worthwhile despite domestic shortcomings. However, it demands more political will and resources to match foreign policy considerations with internal compliance (36). This is not a call solely for the EC, but for all member states and other actors including civil society, cities and the private sector. States can push for further efforts of integrating LGBTI in the national census more directly, like Nepal did with the third gender category.

Integrating multi-stakeholder, inclusive collaboration and effective coordination can thus turn disaggregated data and dissemination into actionable projects advancing the protection of minority groups within the EU. All actors have a specific role to play in reducing violence and discrimination especially as new discourses arise within Europe and beyond: Europe needs to do its homework. Populist narratives should not infringe upon fundamental rights and violence-free societal coexistence (37). To address growing populism, data collection and analysis of minority groups is essential for informed policy making at the EU and national levels. Funding should be directed accordingly, also to further prevent a loss in credibility and legitimacy for the EU. I believe that increasing efforts, starting with a willingness to quantify and qualify lived realities of people from various minority groups, is paramount for a track record that creates less fear and hatred in the societies we live in.

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References

1. This article uses LGBTI as the defined agglomeration of groups on the sexual and gender diversity spectrums. If certain authors or institutions, have researched for only certain groups, this will be specified by using the adequate acronym.
2. European Union Agency for Fundamental Rights, EU LGBT survey – Main results (Luxemburg 2014).
3. Andrew Rettman. Gay rights is EU entry criterion, Brussels says (EUobserver, Jul 2012): https://euobserver.com/lgbti/116963.
4. Council of the European Union. Guidelines to promote and protect the enjoyment of all human rights by LGBTI persons (Council of Europe: Luxemburg, 2013).
5. European Parliament, The rights of LGBTI people in the European Union – Briefing (May 2015).
6. Personal interview conducted with researcher, Lydia Malmedie, Sep. 14, 2016, Berlin, Germany.
7. Phone interview with UNICEF-Director of Data Research, Jeffrey O’Malley, Oct. 28, 2016.
8. IGLA Europe, Annual Review of the Human Rights Situation of Lesbian, Gay, Bisexual, Trans and Intersex People in Europe 2014 (2014), 72 et seqq.
9. Phone interview conducted with Director of the Data Research and Policy Division at UNICEF, Jeffrey O’Malley, Oct. 28, 2016.
10. Dr. M. V. Lee Badgett, Phil Crehan. Investing in a Research Revolution for LGBTI Inclusion – Final Working Draft 7, Jul. 7, 2016.
11. Interview with LGBTI expert Joël Le Deroff, Nov. 7, 2016.
12. Personal interview conducted with Human Rights Officer at the UN Office of the High Commissioner for Human Rights (OHCHR), Fabrice Houdart, Oct. 24, 2016 at the UN Headquarters in New York City.
13. Cf. European Commission, List of actions by the Commission to advance LGBTI equality.
14. Transgender Europe website: http://tgeu.org/ (accessed Nov. 2, 2016).
15. Statement by press office of the BKA, November 08, 2016 via email, original language: “Dem Bundeskriminalamt liegen keine Daten zu Diskriminierungsfällen und Gewalttaten im Bereich der Homo-/Transphobie vor.”
16. Personal interview with OHCHR-Human Rights Officer, Fabrice Houdart, alluding to the “loi du 6 janvier 1978, loi informatique et libertés.”
17. Mirjiam Beutke, Faktensammlung Diskriminierung (Bertelsmann Stiftung, 2013), 16.
18. Eurobarometer Nr. 393, 2012.
19. Statement by police official at state-level, Nov. 04, 2016 via email.
20. European Union Agency for Fundamental Rights, EU LGBT survey – Main results (Luxemburg 2014).
21. European Commission, Special Eurobarometer 437 – Discrimination in the EU in 2015.
22. Cf. written interview with LGBTI activist and lobbyist, Joël Le Deroff, Nov. 7, 2016.
23. J. de Gruchy, S. Lewin, Ethics that exclude: the role of ethics committees in lesbian and gay health research in South Africa (American Journal of Public Health, 2001), cited in: Ilan Meyer, Why lesbian, gay, bisexual, and transgender public health? (American Journal of Public Health, 2001); Council of Representatives. Resolution on Data about Sexual Orientation and Gender Identity (American Psychological Association, Aug. 2016): http://www.apa.org/about/policy/data-sexual-orientation.aspx (accessed Sep. 2, 2016).
24. Cf. “[A]nti-equality groups increasingly use education as a battleground” and succeeded in countries in four Western European countries and Slovakia in 2014, according to Evelyne Paradis. Developments in the European Region in 2014/2015, in: Aengus Carroll, Lucas Paoli Itaborahy. State-sponsored Homophobia. (ILGA, May 2015), 117.
25. European Union Agency for Fundamental Rights, Professionally speaking: challenges to achieving equality for LGBT people (Luxemburg: Publications Office of the European Union, 2016), 9 et seqq.
26. IFOP, Le profil de la population gay et lesbienne en 2011 (Paris, 2011); Janet Olsen. Youth report higher rates of homophobic behaviors in rural and small town schools (Michigan State University Extension, 2013): http://msue.anr.msu.edu/news/youth_report_higher_rates_of_homophobic_behaviors_in_rural_and_small_town_s (accessed Oct. 23, 2016).
27. Phone interview with UNICEF-Director of Data Research, Jeffrey O’Malley, Oct. 28, 2016.
28. Phone interview conducted with the Advocacy Director of the LGBT Rights Program at Human Rights Watch, Boris Dittrich, Oct. 27, 2016.
29. Phone interview conducted with socio-legal researcher and consultant on SOGI issues, Aengus Carroll, Oct. 28, 2016.
30. Dominik Koehler, Nicholas Menzies. Surveys, Big Data, and Experiments: Quantifying LGBTI Development Outcomes. Draft version 2016.
31. Nico Lang, Hillary Clinton will recover from WikiLeaks’ data dumps. LGBT individuals around the world may not be so lucky (Los Angeles Times Opinion, 2016): http://www.latimes.com/opinion/opinion-la/la-ol-wikileaks-assange-lgbt-outing-20161015-snap-story.html, (accessed Oct. 23, 2016).
32. Cf. Christy Mallory et al. Discrimination and Harassment by Law Enforcement Officers in the LGBT Community (Williams Institute, 2015).
33. Much of this was confirmed by the police official’s email statement on Nov. 04, 2016.
34. Interview with LGBTI activist and lobbyist, Joël Le Deroff, Nov. 7, 2016.
35. Written interview conducted with Board Member of Rainbow Rose, the Party of European Socialists’ LGBTI network, representing the Belgian French-speaking party; also secretary of the Board of RainbowHouse Brussels, the umbrella of LGBTI organizations in the Brussels region and experienced LGBTI lobbyist, Joël Le Deroff, Nov. 7, 2016.
36. It is crucial to remember that the strong inclusion of LGBTI equality in EU foreign policy  was mostly a result of incremental changes through a combination of proactive staff, indifference of certain states due to different policy prioritization, as well as the nature of these decisions being non-strategic. Cf. Lydia Malmedie, Contested Issue and Incremental Change – The Example of LGBTI in EU Foreign Policy (dms – der moderne staat: Zeitschrift für Public Policy, Recht und Management, 9. Jg., Heft 1/2016), 35-50; personal interview with researcher, Lydia Malmedie, Sep. 14, 2016, Berlin, Germany.
37. Sasha Polakow-Suransky. The ruthlessly effective rebranding of Europe’s new far right. (The Guardian, Nov. 1, 2016): https://www.theguardian.com/world/2016/nov/01/the-ruthlessly-effective-rebranding-of-europes-new-far-right accessed Aug. 21, 2016.