Does all differentiation of people on the basis of sexual orientation constitute discrimination? The European Court of Human Rights has often said that it does not. Even when the Court has found that a state has violated an individual's Convention rights because of their sexual orientation it has often not considered this to constitute discrimination under Article 14 of the Convention.
This practice began in Dudgeon v the United Kingdom when the Court found that the blanket criminalization of consensual adult sexual acts violated Article 8 but did not constitute a form of discrimination under Article 14. Since that time the Court has evolved its approach to Article 14 across all of its jurisprudence and is now more likely to find in favour of an Article 14 complaint when it is taken (as it must be) in conjunction with another aspect of the Convention.
Yet it is interesting to note that the practice in Dudgeon v the United Kingdom, which is now over 30 years old, still forms the basis for disagreement between the Court's judges. In the recent decision in Şükran Aydın and Others v. Turkey, in which the Court held that there had been a violation of the Article 10 rights of the applicant but that there was no need to examine the complaint under Article 14 of the Convention, one dissenting judge invoked the Dudgeon judgment to support his disagreement. Judge Keller said:
'In Dudgeon v. the United Kingdom, the Court found that a complaint against the prohibition of homosexual acts under Article 14 “amounts in effect to the same complaint, albeit seen from a different angle, that the Court has already considered in relation to Article 8”. It therefore concluded that “there is no call to rule on the merits of a particular issue which is part of and absorbed by a wider issue” and that “there is no useful legal purpose to be served in determining whether he has in addition suffered discrimination as compared with other persons who are subject to lesser limitations on the same right. This being so, it cannot be said that a clear inequality of treatment remains a fundamental aspect of the case”. This approach from 1981 is out of date nowadays. If a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case, the Court has to consider the issue under Article 14 as well. The complaint under Article 14 in conjunction with another Convention right is an autonomous one to which the Court must give autonomous meaning' (para 4, references ommitted).
There are those, such as Robert Wintemute, who argue that every violation of a Convention right based on sexual orientation constitutes discrimination under Article 14 of the Convention. I agree. In the absence of a fully functioning Protocol 12, gay men and lesbians are required to bring complaints under Article 14 in conjunction with another right but the Court should always uphold the Article 14 complaint since the violation of any right on the grounds of sexual orientation is rooted in discrimination that Article 14 prohibits.