Protecting (Trans and) Non-Binary People Against Discrimination in and Through EU Law: Time to Overcome Blind Spots

Abstract

This Article examines the persistent gaps in the protection of trans and non–binary people against discrimination in European Union law, situating its analysis within a broader socio–legal context marked by rising anti–gender rhetoric and uneven national safeguards. Drawing on recent empirical data, including the 2023 FRA LGBTIQ Survey, it highlights the disproportionate levels of discrimination, violence, and harassment experienced by trans and non–binary individuals across the EU, as well as the growing political hostility that shapes their lived realities. Against this backdrop, the Article assesses the current EU legal framework—primary law, the Charter of Fundamental Rights, and secondary legislation—and demonstrates that explicit protection on the grounds of gender identity and gender expression remains absent. It then analyzes the evolving case law of the Court of Justice of the European Union, which has gradually interpreted the prohibition of sex discrimination as extending to certain forms of discrimination against trans persons, while still leaving significant blind spots, particularly for non–binary individuals. Building on recent jurisprudential developments, the Article explores the potential for a more inclusive and expansive reading of “sex” within EU equality law, arguing that such an approach could provide robust protection for all individuals facing discrimination based on gender identity or expression. Finally, it addresses the complex normative and doctrinal challenges that arise when balancing the interests of cisgender women with those of trans and non–binary people under the umbrella of sex–based equality. Positioned within a human–rights–oriented and social–justice–driven framework, the Article ultimately calls for renewed legal and political commitment to ensuring that EU equality law effectively safeguards the rights of trans and non–binary individuals.