By Dana Andreeva, Second Year Student LLB International & European Law, University of Groningen, d.andreeva.1@student.rug.nl

The first global definition of health as a right lies in the 1948 Constitution of the World Health Organization (WHO), and states ‘‘the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition”. [1] However, these aspirations are difficult to attain in particular when it comes to minorities such as the lesbian, gay, bisexual and transgender (LGBT) community. Throughout this blogpost there will be a reference to studies on access to health services for the LGBT community (in its entirety) and just the LGB community (as there is more information on access by lesbian, gay and bisexual individuals). In 2019 online survey of over 143,000 LGBT persons in the European Union (EU), more than a third reported instances of discrimination when access healthcare and rates were twice as high for transgender individuals. [2] Therefore, while healthcare access on a non-discriminatory basis is the key principle of health law, it is clearly a difficult goal to achieve for vulnerable groups.

As healthcare access for LGBT persons within the EU has already been identified as a problem, it is important to understand which health services are protected by EU-law. Within the Union, Member States have a large margin of appreciation in regard to healthcare laws as the Union has an ancillary competence. Therefore, the EU can only support the actions of Member States in this field. [3] However, Member States must act in compliance with the general principles as stated in the Treaty on European Union (TEU), the Treaty on the Functioning of the European Union (TFEU), and the Charter of Fundamental Rights. [4] Therefore, to some extent EU-law forms a legal framework which protects the right of non-discrimination and justice in regard to access to healthcare. [5]

Even though these frameworks exist, in practice, LGBT people face many difficulties when it comes to accessing healthcare. Two potential barriers are defined by a state-of-the-art study conducted by the European Commission in 2017. The study addressed, firstly, barriers faced by LGBT people and barriers faced by health professionals, and secondly, barriers faced by healthcare professionals who lacked LGBT-specific knowledge. [6] The first set of potential barriers LGBT people can face include ignorant attitudes, discriminatory behaviour, unequal treatment where their needs are not recognized (ex. lesbian women not being referred for cervical screening, due to the wrong assumption that they are at low risk for cervical cancer) and denial of certain treatments (ex. reproductive services). [7] Moreover, many LGBT people avoid healthcare centers due to fears of disclosure of sexual orientation or gender identity. The second potential barrier is that healthcare professionals lack awareness of issues relating to sexual orientation and gender identity. There is also a lack of specialist services and counselling services for LGBT individuals, and a lack of protocols for LGBT specific needs. [8] Overall medical practitioners tend to lack the appropriate cultural competence and skills to treat LGBT patients properly.          

The European Commission study not only highlighted the barriers to access to healthcare that LGBT individuals face, but it also focused on four main root causes of health inequalities faced by LGBT individuals: heteronormativity, institutional discrimination, minority stress and stigma. [9] The first main cause, heteronormativity, enforces being heterosexual and cisgender as the norm which then can lead to healthcare professionals being insensitive to LGBT people. [10] The second cause, institutional discrimination, is the act of sustaining inequalities in the public domain through laws like the prohibition of same-sex marriage, and laws which do not prohibit discrimination on the grounds of sexual orientation or gender identity. [11] A study by Hatzenbuehler et al. found that LGB people who lived in areas without protective laws had mental health problems at a rate five times higher than those who lived in areas with protective laws. [12] The third cause, minority stress, is the act of prejudice and discrimination, creating a hostile environment. This was displayed in a 2004 study by King et al. where 214,344 heterosexual people and 11,971 LGB people were questioned. The results showed that LGB people were at a higher risk of mental disorders, self-harm, and substance abuse, compared to heterosexual people. Alcohol or related substance dependency within a twelve-month period was one and a half times more likely in LGBT people compared to heterosexual people. [13] The final cause, stigma, is the negative beliefs associated with LGBT people which can affect both the healthcare professionals, and the LGBT patients who are less likely to seek help due to previous negative experiences.

Overall, one can conclude that health equity is a lofty goal and one that still requires action on the part of all national governments. The principle of non-discrimination that lies within Article 19 of the TFEU and Article 21 of the EU Charter of Fundamental Rights does not specifically address equality for the groups present in the LGBT community. There is also a proposed Equal Treatment Directive which focuses on protection against discrimination, yet this is a proposal that stands in deadlock as Member States cannot seem to agree on a single approach. [14] Therefore, it is the duty of national governments to go beyond EU minimal standards and create new specific measures to combat discrimination against minorities such as the LGBT community and awareness among medical professionals. Access to healthcare is a matter of life and death and is a social justice goal that needs to be achieved.

[1] World Health Organization ‘Basic documents: forty-ninth edition (including amendments adopted up to 31 May 2019)’ (2020, Geneva).

[2] European Union Agency for Fundamental Rights, ‘A long way to go for LGBTI equality’ (2020, Luxembourg).

[3] Article 6(a) of the TFEU.

[4] Article 3.2 of the TEU, Articles 10 and 19 of the TFEU and Article 21 of the Charter of Fundamental Rights of the European Union.

[5] Mette Hartlev, 'Equal Access to Healthcare on A Non-Discriminatory Basis — Reality or Aspiration?' (2013) 20 European Journal of Health Law 343-346. 

[6] European Commission, ‘State-of-the-art study focusing on the health inequalities faced by LGBTI people’ (European Union, 2017) pp. 6.

[7] Ibid, 8.

[8] Ibid, 7. 

[9] Ibid, 20. 

[10] Ibid, 21.

[11] Ibid, 23. 

[12] Ibid, 27. 

[13] Ibid, 30.

[14] Supra note 2, 20.