Saturday, 13 September 2014

E.B. v Austria - complaint about alleged sexual orientation discrimination by an applicant convicted of child sex offences declared inadmissible

The European Court of Human Rights has declared the complaint in E.B. v Austria inadmissible. This follows a previous inadmissibility decision and judgment in respect of complaints by the same applicant. 

I have written a short article about the decision for the European Courts website, which can be found here:

http://europeancourts.blogspot.nl/2014/09/eb-v-austria-no-conditional-prison.html





Tuesday, 19 August 2014

LGB rights in Russia - Alekseyev v Russia (an update)

In advance of the forthcoming human rights meeting by the Committee of Ministers of the Council of Europe on the 23-25 September 2014 (1208DH Meeting) the Russian Federation have submitted an additional action plan in respect of Alekseyev v Russia

The additional action plan is a lengthy document which covers three keys areas: 

  • first, it provides information about the federal and regional legislation relating to 'propaganda of non-traditional sexual relations among minors' (I detailed the nature of the propaganda laws in a working paper last year, but since then several Russian regions have repealed their local legislation in light of the federal law coming into force); 
  • second, it provides information about how domestic authorities have handled requests to hold public events relating to sexual orientation and the rights of sexual minorities; 
  • and third, it reports on the domestic remedies available to citizens who appeal the decisions of public authorities who refuse permission for holding public events. 

Close reading of this document is recommended since it contains important data relating to the current state of both federal and regional law, and how it is being enforced to limit the public assembly and freedom of speech of sexual minorities. 

A key aspect of the additional action plan

Of particular note in the action plan is the now familiar argument by the Russian authorities that the 'propaganda' laws do not discriminate against sexual minorities but exist only to protect minors:

"These law do not provide for a general prohibition or censure of homosexuality but are rather aimed at protection of the morals and spiritual development of the minors. These law do not contain any indication of discrimination and by implication do not allow any excess actions by the public authorities. The laws are not aimed at banning non-traditional sexual relations or their disapproval, but rather at the protection of mental, moral and spiritual development of the children".

The document shows that this interpretation of the propaganda laws is used as a basis for justifying the repeated refusal by domestic authorities to grant permission for public events relating to the rights of sexual minorities. 

For example, in Moscow the public authorities recently refused 92 applications by Mr. Alekseyev and others to hold public events because:

"the conducting of public events in the chosen by the organisers place of the minors' mass gathering may negatively influence their mental development, especially as the topic of the many of the declared public events had an intentionally provocative nature".

An example of the 'provocative nature' of the public events said to threaten the mental development of minors is given as:

"Congratulations to the Muscovites and the capital guests with the coming New Year 2014 on behalf of the homosexual Fathers Frost and transgender Snow Maidens".

When will the Committee of Ministers take action?

I have argued in several previous posts that the action taken by the Committee of Ministers in supervising the execution of the Alekseyev judgment is inadequate. 

It is inadequate because, despite what the Russian authorities continue to state, the Alekseyev judgment is clear that suppression of public discussion of homosexuality on the grounds that it is in the presence of minors is not necessary in a democratic society:

"There is no scientific evidence or sociological data at the Court's disposal suggesting that the mere mention of homosexuality, or open public debate about sexual minorities' social status, would adversely affect children or 'vulnerable adults'". (§ 86)

The Alekseyev judgment is also clear that whilst the suppression of the public assembly of sexual minorities may be proscribed by law, and that the enforcement of such law may be argued to pursue a legitimate aim, this does not justify the interference with the right to freedom of assembly: "irrespective of the aim and the domestic lawfulness of the ban [on 'gay pride' events], it fell short of being necessary in a democratic society" (§ 69).

Although in my working paper I criticised the Strasbourg organs for their historic failure to establish the principle that the suppression of public discussion of homosexuality is in violation of the Convention - which has resulted in a complete lack of Article 10 jurisprudence in this area - the Alekseyev judgment is absolutely clear that the public assembly of sexual minorities cannot be justified solely to 'protect' children from exposure to a discussion of homosexuality.

Four years after the judgment in Alekseyev, and in light of the arguments made by the Russian authorities, the Committee of Ministers needs to decisively state that the Russian Federation has comprehensibly failed to comply with the judgement. 




Monday, 18 August 2014

New 'sexual orientation issues' factsheet

The European Court of Human Rights has issued an updated factsheet on sexual orientation issues.  

As always, this provides a useful summation of some (but not all) of the complaints pending before the Court in respect of sexual orientation discrimination.




Thursday, 31 July 2014

New MA thesis available: 'Legal recognition of same-sex family life in the jurisprudence of the European Court of Human Rights'


Aija Valleala, of the Faculty of Law at the University of Helsinki, has produced a Master's Thesis in Constitutional Law which focuses on the jurisprudence of the Court in respect of same-sex family life.

Here is the abstract:

The aim of this master’s thesis is to examine the jurisprudence of the European Court of Human Rights (’the Court’) regarding same-sex couples and families in order to determine how their need for protection and legal recognition has been met by the Court. The primary method applied is legal dogmatics although the study will, to some extent, go beyond the traditional legal dogmatics and try to identify the major problems in, as well as the reasons behind the Court’s current approach. In addition, a de lege ferenda aspect is present in the thesis.

The ‘right to respect for family life’ and the ‘right to marry and found a family’ are human rights that are guaranteed in article 8 and article 12 respectively in the European Convention of Human Rights (‘the Convention’). Furthermore, article 14 provides that enjoyment of these rights shall be secured without discrimination. These rights are protected, at first hand, in the national level in each contracting state, but in case of alleged breach, the European Court of Human Rights (‘the Court’) has the final jurisdiction and its judgment is binding.

This thesis clarifies, through an analysing of the Court’s jurisprudence on same-sex family life, what is the Court’s current position on the legal recognition of same-sex families. Especially the most recent judgments strongly support the conclusion that any discrimination between unmarried different-sex couples and same-sex couples is unacceptable under the Convention. However, the special status of marriage still justifies the continuing exclusion of same-sex families from rights and benefits only available to marital families. Furthermore, the Convention does not require the contracting states to set up any kind of separate legal framework for same-sex couples.

Given that the same-sex families have equal need for affirmation and legal recognition as different-sex families, the situation remains unsatisfactory until the same level of protection is afforded to them. Also, considering how much the Court’s position has evolved in the past twenty years it is very likely that in the coming decades the Court will find that the Convention requires the states to legally recognise same-sex families, first through civil partnership legislation and ultimately through marriage legislation. Meanwhile, it is important that the convention states do not hinder positive development in the field of same-sex family rights only because the Court currently allows them a wider margin of appreciation. Ideally, the contracting states should comply with the evolving human rights standards on their own accord. 

The thesis can be downloaded here:

https://helda.helsinki.fi/bitstream/handle/10138/45286/Valleala%20%20Legal%20recognition%20of%20samesex%20family%20life%20in%20the%20jurisprudence%20of%20ECHR.pdf?sequence=2

Tuesday, 29 July 2014

Pornography and the European Convention on Human Rights

I'm pleased to say that my article 'Pornography and the European Convention on Human Rights' has been published in the academic journal Porn Studies.

Porn Studies is an innovative new journal, edited by Feona Attwood and Clarissa Smith, and is the first scholarly periodical dedicated to the study of pornography. 

In this, its third issue, the editors have assembled a collection of five articles that focus on the regulation of pornography.

The editors, in their Editorial to the issue, write:

The ‘need’ for regulation [of pornography] has been argued elsewhere and is not the primary focus in this issue. Instead our contributors look to the current state of affairs in particular locales. Our first double issue was a bumper one, in comparison this issue contains just five articles and they are long – exceeding our usual word count – but the nature of their discussions, in laying out the particular interests in regulation or legal precedents meant that longer pieces were necessary to detail the discursive constructions of the problems of porn and its regulation. Our five articles examine the performances of regulation which are local, national and transnational in scope, they examine the discursive constructions of zoning in Albuquerque; the very micro deliberations and justifications of the UK case of regulating Video on Demand; the prohibitive yet also productive nature of classification requirements in Australia; the historical and contemporary arguments over pornography in Iceland; and the ways in which access to or production of pornography are interpreted by the European Court of Human Rights. 

My article examines the ways in which the Court and former Commission have dealt with complaints relating to pornography, and pays specific attention to ECHR jurisprudence under Articles 3, 8 and 10.

Friday, 25 July 2014

Do Church of England 'gay bishops' have a human right not to be 'outed'?

Peter Tatchell has recently stated on Twitter that he is 'considering outing gay [Church of England] bishops who discipline gay clergy who marry'. 

This is a response to the House of Bishops' Pastoral Guidance on Same-Sex Marriage, issued on 15 February 2014, which states:

The House is not [...] willing for those who are in a same sex marriage to be ordained to any of the three orders of ministry. In addition it considers that it would not be appropriate conduct for someone in holy orders to enter into a same sex marriage, given the need for clergy to model the Church's teaching in their lives.

In a conversation with Kelvin Holdsworth, Provost of St. Mary's Cathedral Glasgow, Tatchell discussed outing 'gay bishops' as a response to the hypocrisy of their actions in preventing other gay clergy from entering into marriage. 

This subject will no doubt be discussed in detail by those learned folk over at Thinking Anglicans and Law and Religion, but one aspect that caught my attention was Tatchell's interpretation of the bishops' 'right to privacy':

Peter Tatchell: [...] we are amassing the evidence right now. I’m not saying that we will use it, but we are certainly thinking about it – because people have a right to privacy so long as they are not using their own power and authority to harm other people and when other people are being caused harm and suffering we have a duty to try and stop it. If this is the only way, it is certainly not the preferable way, it’s not the first option but as a last resort I think it is morally and ethically justifiable.

This made me think: how would Tatchell's interpretation of the 'right to privacy' stand up in the context of ECHR jurisprudence?

Could Article 8 protect Bishops from the practice of 'outing'?

A Church of England bishop, like every other person in a Council of Europe state, has a right to respect for his private life. This is guaranteed by Article 8 of the European Convention on Human Rights. 

The exercise of the right to respect for private life can only be interfered with by a public authority when it is in accordance with the law and is necessary in a democratic society to meet one or more of a number of legitimate aims.

Peter Tatchell is not a 'public authority' and, as such, his actions cannot in themselves violate the bishops' right to respect for private life. 

However, the European Court of Human Rights has long held that contracting states have a positive obligation to ensure that an individual's right to respect for private life is not violated by another individual:

The Court recalls that although the object of Article 8 [...] is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life [...]. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (X. and Y. v The Netherlands, 1985, § 23).

It would be perfectly possible, therefore, for a Church of England bishop to complain, in the event of a perceived failure by public authorities to protect his right to respect for private life, that the United Kingdom had not met its positive obligations under Article 8 and, as a result, violated the Convention.

Could an Article 8 complaint from a bishop succeed?

The legal principles 

The Court has long held that the boundary between a State’s positive and negative obligations under Article 8 does not lend itself to precise definition but that the applicable principles are similar: in both contexts regard must be had to the fair balance that has to be struck between 'relevant competing interests' (see: Von Hannover v Germany (No. 2), 2012, § 99).

The relevant competing interests in this case would be a bishop's right to respect for his private life under Article 8, and Peter Tatchell's right to freedom of expression under Article 10.

On the one hand, it is well established that Article 8 protects the 'intimate and vulnerable sphere' of sexual orientation (Kozak v Poland, 2010, § 92).

On the other hand, the Court has long regarded Article 10 to protect freedom of expression as one of the essential foundations of a democratic society and to be applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. The Court has said that these are the demands of pluralism, tolerance and broadmindedness without which there is no 'democratic society' (see: Handyside v the United Kingdom, 1976, § 49).

In addition to this, when adjudicating the fair balance to be struck between these competing rights, the Court has long regarded 'the press' to have a significant and privileged role in democratic societies because it acts as a 'public watchdog' (see: Axel Springer AG v Germany, 2012, § 79).

Peter Tatchell (or the Peter Tatchell Foundation) might not be said to be 'the press', but they could claim to have 'journalistic freedom' to write about and publish on a subject that addresses a pressing social need in a democratic society.

As such, Tatchell could claim a heightened right to freedom of expression under Article 10 and that any interference with it would be a violation of the Convention.

Therefore, any complaint by a Church of England bishop about an interference with his Article 8 rights would be considered in the context of Tatchell's right to freedom of expression under Article 10. 

The Court has recently set out (in Von Hannover v Germany (No. 2), 2012) the relevant principles to be applied in cases where it is required to verify whether domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other such as, in this case, on the one hand, freedom of expression protected by Article 10 and, on the other hand, the right to respect for private life enshrined in Article 8.

In this respect, the Court has identified a number of criteria as relevant where the right of freedom of expression is being balanced against the right to respect for private life, which are:

  • (i) contribution to a debate of general interest
  • (ii) how well known is the person concerned and what is the subject of the report?
  • (iii) prior conduct of the person concerned
  • (iv) method of obtaining the information and its veracity/circumstances in which the photographs were taken
  • (v) content, form and consequences of the publication

Applying the legal principles

Of particular interest to the bishops/Tatchell question is the application of the Court's principles/criteria in Küchl v Austria (2012) which was one of two cases in which the principal and deputy principal of St Pölten seminary (Austria) - where future Roman Catholic priests are trained - complained about insufficient protection from the Austrian courts following the publication in a weekly news magazine, Profil, of an article that stated that they had engaged in same-sex sexual relations with seminarians (and also published photographs purporting to be evidence of this). 

The applicant, Mr. Küchl, complained that the Austrian courts’ refusal to award him compensation in respect of the publication of the article and photograph violated his right to respect for his private life as guaranteed by Article 8.

Applying the principles outlined above, the Court rejected Mr. Küchl's complaint. In doing so, it made the following observations, which are pertinent to the bishops/Tatchell question:

  • The Court endorsed the Austrian Court of Appeal's decision that '[i]n view of the Church’s position condemning homosexuality, the public had a right to be informed about the conduct of a dignitary of the Church which was in open contradiction with that position' (§ 70).
  • According to the established case law of the Court, a distinction has to be made between private individuals and persons acting in a public context, as political figures or public figures. A fundamental distinction is made between reporting facts capable of contributing to a debate in a democratic society, relating to those who exercise official functions, and reporting details of the private life of an individual who does not exercise such functions. The Court accepted that, in these circumstances, the identification of Mr. Küchl prevailed over his interest in protecting his private life (§ 75-79).

In sum, the Court rejected Mr. Küchl's complaint that the state had failed to uphold its positive obligations under Article 8 and therefore concluded that there had been no violation of the Convention.

However, Mr. Küchl had been successful in taking action in the Austrian courts to suppress the distribution of the photograph alleged to evidence his involvement in homosexual acts. The publisher of the photograph complained to the European Court of Human Rights that an injunction prohibiting them from further publishing Mr Küchl’s picture in the context of specific statements about his alleged homosexual acts had violated their right to impart information as guaranteed by Article 10 of the Convention. The Court rejected this complaint (Verlagsgruppe News GmbH and Bobi v. Austria, 2012).

Conclusion

From the Court's existing case law it would appear that any complaint to the Court from a Church of England bishop about any failure of the UK to fulfil its positive obligations under Article 8 to prevent discussion of his private life would likely be unsuccessful. 

This is because such a discussion would likely be judged to involve a public figure and to be an issue of general debate to which the public had a right to be informed. In short, it would be regarded as necessary in a democratic society to 'override' the rights of the individual subject to discussion. 

A caveat to this might be that the public discussion of a Church of England bishop's 'sexual orientation' might be regarded as insufficiently relevant to the issue of same-sex marriage (it not being 'hypocritical', some might argue, to have a homosexual sexual orientation and/or live in a same-sex relationship whilst being opposed to same-sex marriage) and therefore not necessary in a democratic society. 

The use of photographic 'evidence' would certainly raise separate issues and any regulation of it by UK authorities may not be judged to violate Article 10. 

Overall, aside from its moral or ethical legitimacy, Peter Tatchell's 'outing' of 'gay bishops' may be on safe legal grounds in respect of any complaint to the Court by an 'outed' bishop under Article 8 of the Convention. 




Saturday, 19 July 2014

Hämäläinen v Finland - Guest Post by Silvia Falcetta

I am delighted to post a critical commentary by Silvia Falcetta on the Grand Chamber judgment in Hämäläinen v Finland

Silvia is undertaking doctoral work at the State University of Milan. Her PhD research is a sociological study of ECHR jurisprudence in respect of LGBT rights, which incorporates analysis of the decisions and judgments of the Court and the former Commission, as well as the role of NGOs and third party interventions in the litigation process. 

Many thanks to Silvia for this interesting and insightful piece. 


Hämäläinen v. Finland
By Silvia Falcetta

The Grand Chamber of the European Court of Human Rights has last week issued an important judgment on gender identity in the area of family life, addressing the question of the conversion of a marriage into a civil partnership due to the identity change of one of the spouses. The applicant is a transgender woman who wishes to obtain the full recognition of her new gender identity without severing the wedlock with her wife.

Ms. Hämäläinen at birth was assigned the male sex, she always felt a female but decided to cope with the situation (§10). In 1996 she married a woman and in 2002 they had a daughter. According to the Finnish Act on Confirmation of the Gender of a Transsexual, Act, the confirmation of such status required that the person was not married or that the spouse gave his/her consent to the transformation of the marriage in a civil partnership, the only legal recognition granted to same-sex couples by Finnish law. The applicant could, however, overcome the refusal of the spouse by divorcing and, thus, obtaining the fully recognition of new gender identity. Both the applicant and her wife refused this option, stating that a divorce would contrast with their personal and religious beliefs, and appealed for a repeal of this requirement. Having exhausted national remedies without success, the applicant complained to the European Court of Human Rights that the dispositions of the Act constituted a violation of article 8, 12 and 14 of the Convention. On 13 November 2012 the Fourth Section of the Court rejected unanimously the complaint on all counts, adopting a reasoning further subjected to academic critical analysis. Consequently, the applicant requested that the case be transferred to the Grand Chamber, hoping for a quash of the original judgment.

The Grand Chamber rejected with a significant majority, 14 to 3, the complaint, confirmed the previous Chamber judgment and it held that there had been no violation of article 8 and article 14 taken in conjunction with article 8 and 12. Furthermore, the Court found no need to examine the case under article 12 of the Convention. The Grand Chamber, thus, endorsed a doctrine of self-restraint in transgender and same-sex marriage and confirmed the legal relevance of the “State interest in maintaining the traditional institution of marriage intact”.

Two forms of reasoning arise in the judgment: the Court, on one side, allowed a wide national margin of appreciation on moral and sensitive issues, reaffirming a standpoint sympathetic to an heteronormative conception of law. Dissenting judges, on the other, challenged the Court's jurisprudence with regard to transgender and same sex marriage and strongly argued in favor of a more dynamic approach to the Convention.

A number of relevant facets emerge through the dialectic between the parts, I will flesh out only four issues here.

The symbolic meaning of marriage

The argument of the applicant for the recognition of her marriage heavily rests on the symbolic significance of marriage and on the alleged right not to be forced to terminate a marriage against personal religious beliefs (§44). Mr. Cojocariu, the applicant’s lawyer, recognized, on a post on this blog, that according to Finnish law registered partnership are quite identical to marriage in terms of the rights and benefits conferred on the spouses as well in relation to their children, and he added that the case for the legal recognition of a cisgender heterosexual marriage should be reconnected to the very social and religious meaning of marriage itself.

The symbolic significance of legal institutions, among which marriage is one of the most preeminent, is deeply analyzed in legal studies, as well as in political theory and social sciences[1]. Eminent scholars have approached the struggle for same-sex marriage from this standpoint and they disputed that being denied of right to marry leads to a unjustified exclusion from one of the most “defining rituals” of collective life[2]. Hämäläinen v. Finland has, thus, highlighted a core issue, underpinned by the whole strategic litigation policy on same sex couples, namely the refusal of separate but equal legal remedies because of the discrimination they reproduce.

Dissenting judges – Sajó, Keller, Lemmens - accorded a high degree of relevance to the point, stating:

It is in our view that the majority didn’t take into account the fact that the applicant and her spouse are deeply religious. (…) Given their religious background, the applicant and her spouse cannot simply change their marriage into partnership, as this would contradict their religious beliefs. (…) We believe that the majority did not take important factual information sufficiently into account ( Joint Dissenting opinion of Judges Sajó, Keller and Lemmen, §6)

The Court, indeed, recalled the religious beliefs of the applicant (§38), but didn’t take this aspect into consideration and, in determining the existence of a breach of article 8, the majority clearly abided only by practical and effective rights provided by marriage and civil partnership, stating:

The Court cannot therefore uphold the applicant’s complaint that the conversion of a marriage into a registered partnership would be akin to a divorce (§ 84)

The Court considers that the effects of the conversion of the applicant’s marriage into a registered partnership would be minimal or non- existent as far as the applicant’s family life is concerned. (…) It does not therefore matter, from the point of view of the protection afforded to family life, whether the applicant’s relationship with her family is based on marriage or registered partnership (§85)

The Court went on, then to say:

The minor differences between these two legal concepts are not capable of rendering the current Finnish system deficient (§ 87).

It may be argued that the Court is willing to refuse whatsoever referral to moral or symbolic conceptions of marriage; instead, the Grand Chamber has confirmed the legal relevance of “the State’s interest in maintaining the traditional institution of marriage intact” (§38), sharpening considerations already introduced in Schalk and Kopf and X. v Others judgments. Consequently, the Court seems deeply anchored to an heteronormative and asymmetric conception of marriage, since it addresses morals to affirm the particular status of heterosexual marriage but it refuses to use the same approach in order to critically evaluate the exclusion of same-sex couples from it.

Positive and negative obligations                                                                   

Whereas the Grand Chamber held that the central issue was to determine whether respect for  the applicant’s private and family life entails a positive obligation on the State to provide an effective and accessible procedure to have her new gender legally recognized while remaining married (§64), dissenting judges adopted the opposite standpoint and argued that the Court should have examined the case “as a potential breach of a negative obligation, for it neither requires any major steps by the State authorities nor entails important social or economic implications” (§4).

I argue that the relevance of this doctrinal disagreement is extremely important as it is grounded on a opposite evaluation of a possible distinction between transgender and same sex marriage and, besides, it leads to different conceptions of the right to marry secured by the Convention. Departing from the dissenters’ standpoint, there is room for a peculiar interpretation of Article 12, according to which the Convention should protect the right of men and women to marry as well as the right to “remained married unless compelling reasons justify an interference with the civil status of the spouses” (Joint Dissenting opinion of Judges Sajó, Keller and Lemmen,§ 16). The Court could have, then, imposed on the defendant State the negative obligation to unlink the confirmation of a new gender identity from the civil status of the applicant, without recognizing the access to marriage for same-sex couples. As stressed by the minority, such an argument has a legal grounding, being it recently adopted in three judgments of Constitutional Court of Austria, Germany and Italy, which have overturned decisions requiring the dissolution of pre-existing marriages as a precondition for the legal acknowledgment of acquired gender, without imposing same-sex marriage (§16). The Court, however, reiterated that “the applicant claim, if accepted, would in practice lead to a situation in which two persons of the same sex could be married to each other” and reaffirmed the conservative interpretation, according to which neither Article 8 nor Article 12 of the Convention can be interpreted as imposing an obligation on Contracting States to grant same-sex couples access to marriage (Schalk and Kopf §96, §101).

The approach to the margin of appreciation and the consensus analysis: different doctrinal and methodological standpoints

The evaluation of the case under positive obligations directly affects the use of the doctrine of the margin of appreciation and the consensus analysis.

According to a well established jurisprudence, the States enjoy a certain margin of appreciation that, in implementing positive obligations, becomes wider either in absence of a common consensus within the member Parties of Council of Europe or where the case raises sensitive moral and ethical issues (§ 67 present judgment, X,Y,Z v. the Uk §44, Fretté v. France §41, Goodwin v. Uk §85). In the present case the Court didn’t depart at all from previous judgments and made a severe statement that cut off, at least for now, hopes of LGB and T activists and supporters:

The margin must be in principle extended both to the State’s decision whether or not to enact legislation concerning legal recognition of the new gender of post-operative transsexuals and, having intervened, to the rules it lays down in order to achieve a balance between the competing public and private interests (§75).

A fair balance between competing values should be achieved through the consensus analysis, as far as even this doctrine has been subject to sharp and punctual critique. The evaluation of a common consensus collides with the primary task of the Convention to secure fundamental rights in the area of Council of Europe, since it refers to numbers and not values. Moreover, as Benvenisti argues, this doctrine is flawed from a theoretical perspective and harmful from a practical one. “By resorting to this device, the Court eschews responsibility for its decisions (…). It stops short of fulfilling the crucial task of becoming the external guardian against the tyranny by majorities[3]”.

The methodology of evaluating the existence of the consensus is also not univocally established. Let’s compare the Court’s reasoning to the dissenters’ one in the present case: the Court chose a static and narrow approach, turning only to those States that while permitting transgender marriage don’t recognize same-sex marriage. Besides, dissenting judges noted that the proof of a consensus must not depend on the existence of a common approach in super-majority of States and stated that the Court has some discretion regarding its acknowledgment of trends (Joint Dissenting opinion of Judges Sajó, Keller and Lemmen, § 5). Departing from this dynamic and evolutive conception of the Convention, there is a growing consensus on transgender rights: an increasing number of CoE States is dealing with the issue and several non European countries have recognized the existence of a third gender (Joint Dissenting opinion of Judges Sajó, Keller and Lemmen, § 5) §7.). The Grand Chamber has reversed the fundamental passage in the landmark Goodwin judgment according to which “The Court attaches less importance to the lack of evidence of a common European approach to the resolution (…) than to the clear and uncontested evidence of a continuing international trend” (Goodwin § 85 in H v. Finland Joint Dissenting opinion of Judges Sajó, Keller and Lemmen, § 5).

The Court, thus, accorded to national legislator latitude both in the substantial and in the structural aspect of margin of appreciation, posing under threat the universalistic aspiration of the Convention as well as the protection of minorities. I would like to end this paragraph recalling concerns raised on the point by Eyal Benvenisti:

This policy put quite a heavy burden on the advocates of the promotion of individuals and minority rights who must spread resources among the diverse national institutions in their effort to promote human rights. Only if they succeed in a sufficient number of jurisdictions will the Court be convinced that the status quo has changed and react accordingly. Such a policy cannot be said to be promoting human rights, especially not minority rights[4]

The separatism strategy: endorsing a heteronormative conception of marriage

I would like to close my reflection with a critical evaluation of the strategy followed by the applicant. With the term “separatism strategy” I refer to the deliberate choice of the applicant to distinguish her case from the issue of same-sex marriage. From a number of statements it actually seems that the applicant is committed to the traditional model of marriage and that she has displayed the whole reasoning trying to demonstrate that a transgender marriage perfectly fits to the typical ideal of marriage, precisely because it is a separate reality from same-sex marriage. This reasoning does not even try to criticize the heteronormative assumptions of marriage and simply asks for the inclusions of cisgenders marriages, emphasizing the enduring heterosexual orientation of spouses. Irrespective of the Grand Chamber final outcome, it is troublesome that the LGBT movement is so akin to split up, without even questioning the moral foundations entailed in the jurisprudence of the Court. This point reminds me of an observation by Morgan: “We have made some gains in being included in the heteronormative system. But … we have not been very successful at breaking down that system. We have not managed to challenge the heteronormative assumptions upon which the system is based[5]”.
This assimilative perspective could be very dangerous, since it draws efforts and attention to find the best way to suit to the traditional model of family life without questioning its discriminatory order.







[1] It appears to be a distinctive feature, embedded with a broader  social structure that has historically awarded the public power with the authority to decide which practices should be considered valuable
[2] I am here referring to Martha Nussbaum’s essay, “A  Right to Marry?”, Vol. 98, California Law Review (2010), 667.
[3] See E. Benvenisti, “Margin of Appreciation, Consensus, and Universal Standards”, Vol. 31 New York University Journal of International Law and Politics (1999), pp. 843-54, at p. 852.
[4] See E. Benvenisti, “Margin of Appreciation, Consensus, and Universal Standards”, Vol. 31 New York University Journal of International Law and Politics (1999), pp. 843-54, at p. 851.
[5] See W. Morgan, quoted in Paul Johnson, “Challenging the Heteronormativity of Marriage: The Role of Judicial Interpretation and Authority”, Vol. 20,  Social & Legal Studies (2011), p. 352.