Implementation of central concepts
Author | Panagiota Petroglou |
Pages | 11-49 |
11
3Implementation of central concepts
3.1General (legal) context
3.1.1Surveys on the definition, implementation and limits of central concepts of gender
equality law
A survey of the year 201922criticised the Act 4604/2019, OJ A 50/26.3.2019 on the
promotion of substantive gender equality23 (at the time still a Bill) regarding its definitions
of key concepts. It is deplored that the definitions of direct and indirect discrimination
create legal uncertainty: instead of copying the relevant definitions of EU law, the legislator
chose to draft new definitions that are legislatively imperfect and legally dangerous.
Moreover, according to the survey, substantive equality is defined in such a complicated
way that it is doubtful whether the legislator was aware of the actual meaning of the
concept: the redrafting of the definition is necessary. On the other hand, the survey
welcomed other novelties of Act 4604/2019, such as gender mainstreaming, equality
marks and equality plans. However, it pointed out the use of several Ρmay clausesΣ which
risk rendering the relevant provisions to mere wishes.
3.1.2Other issues
Thelegal definitions of central concepts of gender equality law used tocopy those of
Directive 2006/54/EC, with the exception of positive measures, the concept of which is
more positive and stronger at national level than in EU law, in that it explicitly provides
that positive measures are not only allowed, but they are obligatory and that they do not
constitute discrimination.
However, Act 4604/2019, OJ A 50/26.3.2019, in its Article 22 amended the definitions of
direct and indirect discrimination and sexual harassment on the grounds of sex (and
gender identity), which were previously provided by Act 3896/2010,24 implementing
Directive 2006/54/EC (Recast).25It also provided new definitions for positive measures
and positive action. The new definitions on Ρdirect discriminationΣ (see 3.3.1 below),
Ρindirect discriminationΣ (see 3.4.1 below), Ρsexual harassmentΣ (see 3.7.3 below) and
Ρpositive measuresΣ (see 3.6.1 below) constitute a serious regression with respect to the
gender equality and anti-discrimination acquis in Greece. On the other hand, Act
4604/2019 did not make any reference to the Directive 2006/54, which is in clear violation
of its implementation requirements. Moreover, it creates lack of clarity and legal
uncertainty, not allowed by EU law in the implementation of the Directives.26 The definition
of Ρmultiple discriminationΣ is also problematic (see 3.5.1 below).
22 Natsi, D., Papa, Th. (2019), (The legal
treatment of gender-based discrimination in Greece), Heinrich Böll Stiftung, Greece, p. 35.
23Act 4604/2019 Ρτn the promotion of substantive gender equality etceteraΣ, τJ A 50/26.3.2019.
24 Greece, Act 3896/2010, ΡImplementation of the Principle of Equal Treatment of εen and Women in εatters
of Employment and Occupation. Harmonisation of Existing Legislation with Directive 2006/54/EC of the
European Parliament and the Council of 5 July 2006 and other provisionsΣ (
−
2006/54/
, 5 2006 ), OJ A 207/8.12.2010, entered into force as
of 8.12.2010.
25Directive 2006/54/EC of the European Parliament and of the Council, 5 July 2006, on the implementation of
the principle of equal opportunities and equal treatment of men and women in matters of employment and
occupation (recast).
26 EELN flash report of 1 July 2019, Ρσew Act 4604/2019 on substantive equality entered into force on 26
εarch 2019Σ, available at: https://www.equalitylaw.eu/downloads/4907-greece-new-act-4604-2019-on-
substantive-equality-entered-into-force-on-26-march-2019-pdf-102-kb.
12
3.1.3General overview of national acts
See above under Sections 1.2 (List of main legislation transposing and implementing
Directives), 2.1 (Constitution) and 2.2 (Gender equality legislation).
3.1.4Political and societal debate and pending legislative proposals
In the period 6 March 2018to 20 March 2018 the bill ΡOn the promotion of substantive
gender equality and on the fight against gendered violenceΣ27 was uploaded to the open
governance website for consultation.28 Among others, the womenΣs NGO (confederation),
National Council of Women, observed that the time limit for consultation was too short for
such an important bill. Moreover, it warned that the provisions containing definitions of
the bill would cause problems, in particular with a view to the existing legislation
transposing the relevant Directives. Moreover Article 2 on definitions of central concepts
of gender equality law, as worded in the relevant bill, was strongly criticised by the long-
established womenΣs σGτ, League for WomenΣs Rights, which demanded the withdrawal
of all provisions relating to matters already regulated by legislation implementing
directives or the Constitution.29 This article was also criticised by the Scientific Service of
Parliament (which checks the conformity of bills with the Constitution, ratified international
treaties and EU law) and by several MPs during the parliamentary debate. In spite of the
quite harsh comments of the womenΣs σGτ δeague for WomenΣs Rights and the
ParliamentΣs Scientific Service and in spite of the critical comments by MPs whoalso
invoked the δeagueΣs paper, the bill was not improved. εoreover, the final text of the Act,
as published in the OJ, proved to be worse than the bill as concerns fundamental issues,
in particular regarding the definitions of Ρdirect discriminationΣ (see 3.3.1 below), Ρindirect
discriminationΣ (see 3.4.1 below), Ρsexual harassmentΣ (see 3.7.3 below), Ρpositive
measuresΣ (see 3.6.1 below) and Ρmultiple discriminationΣ (see 3.5.1 below).Finally, the
bill passed in March 2019, as Act 4604/2019, OJ A 50/26.3.2019.30
3.2Sex/gender/transgender
3.2.1Definition of ΡgenderΣ and ΡsexΣ
The terms gender/sex are not defined in Greek legislation.
3.2.2Protection of transgender, intersex and non-binary persons
Discrimination due to gender reassignment is explicitly prohibited by Article 3(2)(b) of Act
3896/2010 transposing Directive 2006/54/EC. This provision does not include
discrimination on the ground of gender identity. Act 4604/201931added the ground of
Ρgender identityΣ to the prohibition of (direct and indirect) discrimination provided by Act
3896/2010, implementing Directive 2006/54/EC.32 Moreover, Act 4046/2019 in its Article
2(9) defined for the first time ‘gendered discriminationΣas physical, psychological or verbal
conduct, through which persons are degraded, inter alia, on the grounds of gender
identity. There is no explicit anti-discrimination provision concerning intersex and non-
27Bill Ρτn the promotion of substantive gender equality and on the fight against the gendered violenceΣ,
www.opengov.gr/ypes/?p=5597.
28 In the context of electronic deliberation, almost every piece of draft legislation or even policy initiative by
the government is posted on a blog-like platform prior to submission to parliament. Citizens and
organisations can post their comments, suggestions and criticisms article-by-article.
29δeague for WomenΣs Rights protest, http://leagueforwomenrights.gr/images/03032ü019/OUSIASTIKI-
ISOTITA.pdf, in Greek.
30 EELN flash report (Greece) of 1 July 2019, Ρσew Act 4604/2019 on substantive equality entered into force
on 26 εarch 2019Σ, available at: https://www.equalitylaw.eu/downloads/4907-greece-new-act-4604-2019-
on-substantive-equality-entered-into-force-on-26-march-2019-pdf-102-kb.
31Act 4604/2019, Ρτn the promotion of substantive gender equality etceteraΣ, τJ A 50/26.3.2019.
32EELN flash report (Greece) of 1 July 2019, Ρσew Act 4604/2019 on substantive equality entered into force
on 26 εarch 2019Σ, available at: https://www.equalitylaw.eu/downloads/4907-greece-new-act-4604-2019-
on-substantive-equality-entered-into-force-on-26-march-2019-pdf-102-kb.
13
binary people. Article 1 of Act 4443/2016 which re-transposed Directives 2000/43/EC and
2000/78/EC, prohibits any direct or indirect discrimination, inter alia, on the ground of
Ρgender identity or characteristicsΣ (see 3.5.1 below).
Moreover, Article 1 of ct 927/1979, OJ A 139/28.6.1979, implementing the CERD, as
amended by Act 4285/2014, OJ A 191/10.9.2014 and Act 4491/2017, OJ A
152/13.10.2017, prohibits any act that may entail discrimination, hate or violence against
people or groups of people on the basis of, inter alia, Ρgender identityΣ and Ρgender
characteristicsΣ, making it a criminal offence prosecuted by its own motion (see 2.2 above).
The new Criminal Code in Greece,33 which was introduced by Law 4619/2019, OJ A
95/11.6.2019 and came into force on 1 July 2019 by replacing the previous Code of the
year 1950, abolished Article 361B that concerned punishment of the exclusion from the
provision of goods and services in based on grounds of discrimination. Article 361B had
been introduced in the previous Criminal Code by Article 29 of Act 4356/2015,OJ A
181/24.12.2015. Specifically, Chapter 21 of the current Greek Criminal Code abrogates
Article 361B of the previous Code which stated that whoever supplies goods or offers
services or announces through a public call the supply of goods or provision of services by
excluding out of disdain individuals based on characteristics of, inter alia, gender identity
or gender characteristics, shall be punished with imprisonment of a minimum of three
months and a fine of at least EUR 1 500. However, it should be highlighted that this repeal
does not affect the general interdiction of discrimination regarding access to goods and
services enshrined in Act 4443/2016. In particular, Article 11 of Law 4443/201634 still
stipulates that whoever refuses to provide goods and services on grounds of, inter alia,
gender identity and sex characteristics is punished with an imprisonment ranging from
three months to five years and a fine ranging from EUR 1 000 to EUR 5 000.
The Ombudsman had repeatedly asked for the legal recognition of gender identity.35A
survey of the year 2019 describes analytically the first case law and the progress to the
τmbudsmanΣs proposal and further to the adoption of the relevant Bill and its travaux
préparatoires.36 Finally, gender identity has been legally recognised for the first time by
Act 4491/201737 (Articles 1 to 7), which aims to ensure the rights of a person on the basis
of his/her gender identity and gender characteristics in all fields. The most important
provisions of Act 4491/2017 are the following. According to Article 1, Ρa person is entitled
to the recognition of his/her gender identity as an element of his/her personalityΣ, as well
as Ρto respect for his/her personality according to his/her gender featuresΣ. Article 2 defines
Ρgender identityΣ as Ρ[T]he inner and personal way in which someone feels his/her gender,
irrespective of the sex registered at birth according to his/her biological features. Gender
identity includes the personal feeling of oneΣs body as well as the outer expression of
gender which correspond to the personΣs will. The personal feeling of oneΣs body may be
linked to changes due to medical treatment or operations freely chosen. Gender features
are understood as the chromosomes, the genes and the anatomic features, including
primary features, such as the reproductive organs, and secondary features, such as muscle
mass, breast or hair development.Σ For the ΡcorrectionΣ of someoneΣs Ρregistered sexΣ from
male to female and vice versa [there is no possibility not to choose a gender (an agender)
or to choose a so-called Ρthird genderΣ] in accordance with the individualΣs will and personal
feeling linked to their body and external appearance.
33 EELN flash report (Greece) of 15 July 2019, ΡAbolition of punishment of activities of discriminatory provision
of goods and servicesΣ, available at: https://www.equalitylaw.eu/downloads/4940-greece-repeal-of-article-
361b-of-the-greek-criminal-code-pdf-79-kb.
34 Act 4443/2016, OJ A 232/9.12.2016.
35 Greek Ombudsman (2016) Ρ -
Σ
(Press release – The Ombudsman asks for the consolidation of the rights of children in the case of a same-
sex partnership and for the legal recognition of gender identity), available at:
https://www.synigoros.gr/resources/docs/20160516-dt--4.pdf.
36 Natsi, D., Papa, Th. (2019), ikgkikjklhgjijkhg (The legal
treatment of gender-based discrimination in Greece), Heinrich Böll Stiftung, Greece, pp. 60-66.
37 Act 4491/2017 Ρδegal recognition of gender identityΖ etcΣ, τJ A 152/13.10.2017.
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