European Court of Human Rights uses strict scrutiny for sex/o discrimination

by on November 1, 2010  •  In Uncategorized

In Alekseyev v. Russia, the European Court of Human Rights issued a judgment in favor of a gay activist who has been leading efforts to secure the right to march in the streets of Moscow, and in the process has encountered police brutality and official roadblocks. The EHR found that Russia had violated the Convention on the Protection of Human Rights in several respects, including denial of the right to peaceably assemble.

One of the claims was that the government's actions were not only censorious but that they were applied differentially to Alekseyev because he is gay.  In that portion of the opinion (pp 26-27), the court adopted what in the U.S. would be called strict scrutiny, the highest level of protection. It held that when discrimination

operates in this intimate and vulnerable sphere of an individual’s private life, particularly weighty reasons need to be advanced before the Court to justify the measure complained of. Where a difference of treatment is based on sex or sexual orientation the margin of appreciation afforded to the State is narrow, and in such situations the principle of proportionality does not merely require the measure chosen to be suitable in general for realising the aim sought; it must also be shown that it was necessary in the circumstances. 

The court added that if sexual orientation were the only reason for a differential policy, that would essentially be a per se violation of the Convention.

The EHR is now in the same peculiar zone as California state law – it requires strict scrutiny, but has also ruled that same-sex couples do not have a right under the Convention to marry. 


Leave a Reply

Your email address will not be published. Required fields are marked *