Implementation of central concepts
| Author | Panagiota Petroglou |
| Pages | 11-49 |
11
3 Implementation of central concepts
3.1 General (legal) context
3.1.1 Surveys on the definition, implementation and l imits of central concepts of gender
equality law
A survey of th e year 201922 criticised 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 sur vey, substantive equality is defin ed in such a complicated
way that it is doubtful whether the legislato r was aware of the actual meaning of the
concept: the redrafting of the de finition is necessary. On the othe r hand, the survey
welcomed other novelti es of Act 4604/2019, such as gender mainstreaming, equality
marks and equality plans. H owever, it pointed out the u se of several Ρmay clausesΣ which
risk rendering the relevant provisions to mere wishes.
3.1.2 Other issues
The legal definitions of central concepts of gender equality law used to copy those of
Directive 2006/54 /EC, wi th the exception of positive measures, the concept of which is
more positive and stron ger at national level than in EU law, in that it explicitly provides
that positive measures are not only allowed, bu t they are obligatory and that t hey do not
constitute discrimination.
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).25 It also pr ovided new definitions f or p ositive 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 cr eates 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.
23 Act 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.
25 Directive 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
3.1.3 General 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) .
3.1.4 Political and societal debate and pending legislative prop osals
In the period 6 March 2018 to 20 March 2018 the bill ΡOn the p romotion 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 th at the provisions containing definitions of
the bill would cause problems, in particular with a view to the existing legislation
of gender equality law, as worded in the relevant bill, was strongly c riticised by the l ong-
established womenΣs σGτ, League for WomenΣs Rights, which demanded th e withdrawal
of all provi sions relating to matters already regulated by legislation implementing
directives or the Constitut ion.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) an d by several MPs durin g the parliamentary debate . In spite of the
quite harsh c omments of th e womenΣs σGτ δeague f or WomenΣs R ights and the
ParliamentΣs Scientific Service and in spite of the critical comments by MPs who also
invoked the δeagueΣs paper, the bill was not improved. εoreover, the final text of the Act,
as published in th e OJ, proved to be worse than the bill as conc erns fundamental issues ,
in particular regarding the definitions of Ρdirect discriminationΣ (s ee 3.3.1 below), Ρindirect
discriminationΣ (see 3.4.1 bel ow), 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
3.2 Sex/gender/transgender
3.2.1 Definition of ΡgenderΣ and ΡsexΣ
The terms gender/sex are not defined in Greek legislation.
3.2.2 Protection of transgender, intersex and non-bi nary persons
Discrimination due to gender reassignment is explicitly prohibited by Article 3(2)(b) of Act
discrimination on the ground of gender identity. Act 4604/201931 added the ground of
Ρgender identityΣ t o the prohibition of (direct and indirect) discrimination provided by Act
2(9) defined for the first time ‘gendered discriminationΣ as 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-
27 Bill 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.
29 δeague 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.
31 Act 4604/2019, Ρτn the promotion of substantive gender equality etceteraΣ, τJ A 50/26.3.2019.
32 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.
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).
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
181/24.12.2015. Sp ecifically, Chapter 21 of the current Greek Criminal Cod e 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 identit y
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 go ods and
stipulates that whoever refuses t o provide goods and s ervices 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 t o EUR 5 000.
The Ombudsman had repeatedly asked for the legal recognition of gender identity.35 A
survey of th e year 20 19 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 hi s/her personalityΣ, as well
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 featu res. Gender
identity includes the personal feeling of oneΣs body as well as the outer expression of
gender which correspond to the personΣ s will. The pe rsonal feeling of oneΣs body may be
linked to changes due t o medical treatment or operations freely chosen. Gender features
are understood as the chromosomes, t he genes and the an atomic 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 gkikj k l hgji 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.
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