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), ikgkikjklhgjijkhg (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.