LGBT update: The European Court of Human Rights

by on July 16, 2012  •  In Family law, International
ECHR building

The European Court of Human Rights is a very active forum for LGBT-related cases this year. The Court’s web site and HUDOC database are comprehensive, easy-to-use resources for those wanting more details about these or other ECHR cases, but here’s a brief summary: As we reported last month, the Court ruled in favor of Moldovan LGBT advocacy organization GENDERDOC-M, who sued the Moldovan government for squelching an anti-discrimination rally planned by the group. The court held that Moldova had violated three articles of the European Convention on Human Rights: freedom of assembly, freedom from discrimination, and right to an effective remedy in appealing the government’s decision.

In February the Court upheld Sweden’s prosecution of four individuals for “agitating against a national or ethnic group,” i.e. hate speech, in Vejdeland and Others v. Sweden. The plaintiffs had distributed inflammatory anti-LGBT literature at a school that none of them attended. Before the ECHR they alleged that the government violated Article 10 (freedom of expression) of the European Convention. Sweden argued that its prosecution had been necessary to fulfill Section 2 of Article 10, specifically to protect the “reputation or rights of others.” In a unanimous opinion, the Court agreed. 

The Court dealt a blow to same-sex couples in European countries without marriage laws in Gas and Dubois v. France (summary in English, opinion in French). One member of a lesbian couple had undergone in vitro fertilization from an anonymous donor, and the couple had been jointly raising the child. When the non-biological mother sought to adopt the child as a second parent, the French court refused her application, stating that “the adoption would have legal implications which ran counter to the applicants’ intentions and the child’s best interests.” French law does not permit transfer of parental rights from one biological parent (in this case, the anonymous donor) to a non-biological parent (even one who has been raising the child) in any civil union, whether involving same-sex or opposite-sex couples. In a disappointing opinion, the Court declined to find discrimination against the plaintiffs since all members of civil unions, both opposite-sex and same-sex, are subject to the same restriction. The opinion did not engage with the obvious problem: that same-sex couples do not have the option of marriage and therefore do not receive the same protections under French adoption law as opposite-sex couples who can marry.

A similar case, X. and Others v. Austria, is currently pending before the ECHR. This case concerns another lesbian couple, unmarried but in a “stable homosexual relationship.” One woman has a son, and her partner wants to adopt the child as a second mother. Austria has denied their request, however, stating that the country’s adoption law only permitted the replacement of one parent with another of the same sex because “Austrian law, while not giving a precise definition of the term ‘parents,’ plainly envisaged two people of different sex.” The couple, as in the unsuccessful Gas and Dubois suit, alleges violations of Article 14 (prohibition of discrimination) in relation to Article 8 (right to respect for private and family life). The Court held a preliminary hearing on the case in December 2011 and will hold a second hearing on October 3rd, 2012.

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