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The Right to Love : The Evolution of Relationship Related Rights of Sexual Minorities Under the European Convention on Human Rights

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Title: The Right to Love : The Evolution of Relationship Related Rights of Sexual Minorities Under the European Convention on Human Rights
Author(s): Lehto, Enni
Contributor: University of Helsinki, Faculty of Law
Degree program: Master's Programme in Law
Specialisation: Legal Theory
Language: English
Acceptance year: 2021
The rights of sexual minorities have advanced at an increasingly rapid pace over the last decades, particularly in Europe. The European Convention on Human Rights (the Convention) and its compliance monitoring institutions, the European Commission of Human Rights and the European Court of Human Rights (the Court), have played an important role in this development. However, despite the many important victories that have been won at Strasbourg over the years, the Court has so far been unwilling to afford fully equal rights to sexual minorities, especially when it comes to marriage and other forms of legal protection for relationships. While some European countries have broadened their definitions of marriage of their own accord, others are busy amending their constitutions to specifically prevent any such development. In such a landscape, a supranational institution like the European Court of Human Rights has a key role to play in directing the future of gay rights in Europe. This study maps the development of relationship related rights of homosexual people in the jurisprudence of the Court and explores some possible explanations for both the shifts that have taken place and the current state of these rights under the Convention. It will first lay out the relevant caselaw to demonstrate how the level of protection afforded to homosexual applicants has differed from that enjoyed by the heterosexual majority in the past and what inequalities still exist today. This reveals five key issues that have featured as battlegrounds for equality in the practice of the Court: the complete criminalisation of homosexuality, unequal ages of consent for homosexual and heterosexual sex, the exclusion of homosexual relationships from the definition of “family life” under Article 8 of the Convention, the lack of legal recognition for homosexual partnerships, and the lack of access to marriage and consequently to other rights and benefits exclusively available to married couples. While the first three have subsequently been rectified, the Court has yet to articulate a clear requirement to provide some form of legal recognition to homosexual couples and has consistently denied that any obligation to provide for same-sex marriage could be derived from the Convention. The second part of the study will explore two possible explanations for both the way these rights have developed and their current state: the Court’s role as an international court and its conceptualisation of homosexuality. Neither the Court as a whole nor its individual judges can avoid having their views of homosexuality influenced by the wider societal attitudes. The understanding of homosexuality affects the way the Court handles cases related to it, and consequently the changes in the Court’s conceptualisation of homosexuality can explain developments in its jurisprudence. Analysing the caselaw though this lens indicates that a conception of homosexuality as undesirable and dangerous can be found underlying the earlier caselaw. However, the Court’s understanding has since evolved, and it currently does not consider homosexuality fundamentally different or less deserving than heterosexuality. The Court’s still ongoing refusal to afford equal rights to homosexuals can be better attributed to reasons stemming from its legal and political position as an international court. As an international institution founded by a voluntary treaty, the Court’s effectiveness ultimately relies on the willing cooperation of the contracting states. Therefore, it needs to constantly persuade the states of the legitimacy of its decisions and to be careful not to “go too far”, lest they stop executing its judgements or withdraw from the treaty altogether. The Court attempts to preserve its legitimacy mainly through the creation and application of its interpretation methods, which function to sustain an appearance of judicial consistency and legal stability and to persuade its audience of its impartiality and value-neutrality. The European consensus doctrine is particularly useful for improving the foreseeability of the Court’s decisions and increasing the member states’ confidence in the legitimacy of the institution. While the application of the consensus doctrine has been beneficial for the evolution of gay rights in the past, it now appears to be hindering any further progress. Since the majority of the member states do not yet offer fully equal rights to LGBT+ people, the stringent application of the European consensus doctrine leads the Court to conclude that the remaining inequalities fall within the states’ margin of appreciation. There are, however, some possible alternatives to the consensus approach. For example, focusing on the discriminatory aspects of the cases might prove more effective for furthering the development of gay rights under the Convention.
Keyword(s): Human rights European Convention on Human Rights European Court of Human Rights gay rights LGBT+ rights homosexuality the right to marry the right to privacy and family life discrimination

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