Latest developments in 2019

• Author: Ouhnaoui, Hania; Bribosia, Emmanuelle; Navasartian, Areg; Rorive, Isabelle
• Pages: 129-132

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12 LATEST DEVELOPMENTS IN 2019

12.1 Legislative amendments

- The framework Ordinance to ensure a diversity policy and to combat discrimination

in the local Brussels civil service: on 25 April (Belgian OJ 24 May 2019), the

Parliament of the Region of Brussels-Capital voted for a new framework Ordinance to

ensure a diversity policy and to combat discrimination in the local Brussels civil

service, which replaces the former Ordinance of 4 September 2008 to the same

effect. This new Ordinance is essentially a rewrite of the former 2008 ordinance, with

some marginal modifications. The main purpose of the law remains to promote

diversity policies within the Brussels civil service, and to lay down a framework to

combat discrimination in the workplace.

Several differences can be noted: the former Ordinance’s title refers to the Brussels

civil service, whereas the new Ordinance refers to the local civil services. This is also

reflected in the provision on the definitions of the Ordinance (Article 4), which is a

much longer list in the new Ordinance, underlining explicitly all levels of local

authorities that are covered by the new Ordinance. Factually, the scope of application

remains unchanged although it is now clearer. The new Ordinance also provides at

Article 5 that any discrimination based on pregnancy, birthing or motherhood,

‘change of sex’, gender identity and gender expression i s assimilated to a

discrimination based on sex. Another change is that the new Ordinance implicates

the regional employment office (Actiris) much more in the development and

implementation of diversity schemes. The diversity officers of Actiris must now assist

local authorities in this task. The timing and financial conditions of the diversity

policies to be put in place by local authorities is also outlined in more detail.

The new Ordinance also provides for a check for compliance with the Ordinance.

Where formerly the only oversight was carried out by the judiciary, the new

Ordinance provides for the appointment of civil servants mandated to ensure the

respect of the Ordinance by all local authorities. Finally, a change is made regarding

equality bodies. The new Ordinance specifically designates Unia as the equality body

with legal standing to defend victims in court and also as the body with legal standing

to mediate between parties. The former Ordinance, dating back to 2008, and

therefore before the creation of Unia, allows a much larger number of bodies, meeting

certain conditions, to fulfil these roles. That power has now been centralised in the

hands of Unia.

12.2 Case law

Name of the court: Constitutional Court

Date of decision: 26 September 2019

Name of the parties: ‘Arc-en-Ciel Wallonie’ and ‘Maison Arc-en-Ciel de Liège – Alliàge’ v.

the Council of Ministers

Reference number: No. 122/2019

Address of the webpage: https://www.unia.be/fr/jurisprudence-

alternatives/jurisprudence/cour-constitutionnelle-26-septembre-2019

Brief summary: The applicants criticised the difference of treatment between the

homosexual or bisexual male population and the rest of the population with regard to blood

donation. The Law of 11 August 2017 on various health-related provisions (Loi du 11 août

2017 portant des dispositions diverses en matière de santé) prohibited men who had had

sexual intercourse with other men from donating blood for a period of 12 months after the

last sexual contact with another man (Article 8). On the one hand, the court found that the

legislation with regard to donations of fresh frozen plasma violates Articles 10 (equality

before the law) and 11 (non-discrimination) of the Constitution and that the difference in

treatment is not reasonably justified. As a result, Article 8 of the Law of 11 August 2017

was repealed with regard to donations of fresh frozen plasma. On the other hand, the Court