Saturday, 28 September 2013

New article on same-sex marriage and the ECHR

Emmanuelle Bribosia, Isabelle Rorive and Laura Van den Eynde of Université libre de Bruxelles have made available a major new article on same-sex marriage and the ECHR. 

The title is: "Same-Sex Marriage - Building an Argument before the European Court of Human Rights in Light of the U.S. Experience".

The article is forthcoming in the Berkeley Journal of International Law, but can be downloaded here:

Friday, 27 September 2013

Hämäläinen v Finland

The European Court of Human Rights has announced the date for its Grand Chamber hearing in the case Hämäläinen v Finland (previously H. v Finland).

This will take place on 16 October 2013 at 9.15a.m.

The case concerns a complaint made by a post-operative transsexual about the requirement that she transform her marriage to her female spouse into a civil partnership in order to gain full legal gender recognition in Finland. 

The Court previously rejected Ms. Hämäläinen's complaint under Article 8, Article 14 taken with Article 8, and Article 12. 

In respect of Article 8 the Court concluded that 'the effects of the Finnish system have not been shown to be disproportionate and that a fair balance has been struck between the competing interests [...] The interference with the applicant’s right to respect for her private life was thus justified'.

In respect of Article 14 taken with Article 8 the court rejected the complaint about discrimination both on the grounds of analogous situation and because neither Article 8 or 12 require contracting states to recognise same sex marriage. 

The outcome of this case in the Grand Chamber is extremely important, not just for individuals in the position of Ms. Hämäläinen but for the larger group of individuals who wish to contract same-sex marriage in contracting states that currently do not allow it.

As I have argued before, some have stated that this is not a case about the right to contract same-sex marriage. Indeed, in its Chamber judgment, the Court said it would not consider the applicant's Article 12 complaint separately because: 'Article 12 of the Convention [...] guarantees a right to marry. The applicant has been legally married since 1996. The issue at stake rather concerns the consequences of the applicant’s change of gender for the existing marriage between her and her spouse'.

However, the Court noted in its Chamber judgment that the question of whether there is an obligation under the Convention to grant same-sex couples access to marriage is closely bound up with the question of whether their is an obligation to allow same-sex couples to remain married. 

The same link between the provision to allow same-sex couples to marry and the rights of post-operative transsexuals to remain married to a same-sex partner is made in the Court's earlier admissibility decision in Parry v the United Kingdom.

If the Court finds in favour of Ms. Hämäläinen it does not follow that it will then recognise a right to same-sex marriage under Article 12 of the Convention. Finding that the Finnish state has disproportionally and unnecessarily interfered with the applicant's Article 8 rights by requiring compulsory divorce is very different to saying that she has a right to contract same-sex marriage.

However, if the Court rules that Finland must legally recognise Ms. Hämäläinen's same-sex marriage it will take a step that will be of considerable importance for those who want to gain recognition for same-sex marriage under the Convention. For, in essence, the Court will have said that same-sex marriage is protected by the Convention. 

The full press release of the Court can be found here:

Monday, 23 September 2013

S.M.M. v the United Kingdom - reference to 'gay rights'

The European Court of Human Rights have issued 'questions to the parties' in S.M.M. v the United Kingdom.

The complaint relates to the detention of a Zimbabwean national because he was illegally resident in the UK. The applicant claims that a period of his detention was unlawful because he was suffering from a mental health illness. The mental illness of the applicant was related to various physical abuse he had suffered in Zimbabwe from Zanu-PF supporters. One incidence of this abuse happened while the applicant was 'protesting about gay rights'.

Summary of the facts

S.M.M. is a Zimbabwean national who was born in Zimbabwe in 1982 and currently lives in Wembley, London.

S.M.M. arrived in the UK in May 2001 and was granted leave to stay for six months as a visitor. He overstayed, subsequently developed mental illness, and was convicted for a number of offences (driving related, and resisting or obstructing a police officer). 

In April 2005 he made an application for asylum that was refused.

In August 2007 he was subsequently convicted of possessing Class A drugs with intent to supply and sentenced to three years’ imprisonment.
S.M.M made a second asylum application in March 2008. In doing so, he described two violent incidents he had experienced in Zimbabwe: first, he claimed that in 2000 he had been attacked by Zanu-PF supporters with knives, sticks and sandbags while protesting about gay rights; and secondly, he claimed that later that same year he had been arrested for demonstrating and beaten on his back and the soles of his feet while detained at a police station.
On 14 November 2008 the applicant was served with a notice of liability to automatic deportation. As a consequence, when he completed his sentence on 28 November 2008 he remained in detention under the Secretary of State for the Home Department’s immigration powers. He was subsequently released on 15 September 2011 and has since been engaged in asylum appeal proceedings.
It is the period of detention between 2008 and 2011 that forms the substance of the complaint to the European Court of Human Rights.
The applicant complains under Article 5 § 1 of the Convention that his detention from 28 November 2008 until 15 September 2011 was unlawful because the Secretary of State for the Home Department failed to apply the torture concession; he failed to apply the mental health concession; and failed to follow the Hardial Singh principles [full details of which are given in the Court's communication].
Questions to the parties
  1. Was the applicant detained throughout the period between 28 November 2008 and 11 September 2011 as “a person against whom action [was] being taken with a view to deportation” within the meaning of paragraph (f) of Article 5 § 1 of the Convention?
  2. Did the domestic legal regime of administrative detention applied to the applicant satisfy the requirements inherent in Article 5 § 1 as to the quality of the national law authorising such detention? In particular, did the lack of any time limits on administrative detention, taken alone or in conjunction with the absence of any automatic judicial oversight of such detention, violate the requirement of “lawful” detention under Article 5 § 1 in this sense?

Saturday, 21 September 2013

Council of Europe LGBT page updated

The Council of Europe have updated their main LGBT page.

There are details about the outcomes of the summer session of the Parliamentary Assembly (PACE) of the Council of Europe which debated and adopted a report by Håkon Haugli (Norway) on tackling discrimination on the grounds of sexual orientation and gender identity. 

Wednesday, 18 September 2013

Russian law on ‘non-traditional sexual relations' is not equivalent to 'Section 28'

It is becoming increasingly common to see the recently enacted federal law of the Russian Federation that prohibits the propaganda of 'non-traditional sexual relations' being compared to the United Kingdom's 'Section 28' of the Local Government Act 1988.

Last week, for example, the actor Simon Callow presented an informative film on the BBC's Daily Politics programme and, in an interview that followed, he made the case that the Russian legislation was very similar to the now repealed Section 28. 

There may be politically expedient or pragmatic reasons to draw comparisons between these laws, but they are hardly equivalent. Section 28 prohibited the 'promotion' of homosexuality by local authorities, with its target firmly on schools and other services. Unlike the Russian federal law it had no relevance to the public speech of private citizens and did not create any prosecutable offence. No legal proceedings - which would have involved a judicial review - were ever successfully brought against a local authority under Section 28.

Hardly anyone, not even those that supported its introduction, would argue that Section 28 was good. But it is important to remember that, even at its most anti-gay, the UK never introduced statutory legislation curtailing general freedom of speech in respect of sexual orientation. Section 28 was, however misguided, an attempt to regulate the education of children and the spending of local authorities. 

Perhaps a better comparison would be between the Russian law and the emergency media ban issued in the late 1980s to prevent the broadcasting of any words spoken by Sinn Fein or the Ulster Defence Association - although, again, this did not relate to all citizens and was limited only to media broadcasts. 

To compare the Russian federal law to Section 28 fails to grasp the serious and far-reaching implications it has for all Russian citizens and their everyday lives. It also fails to acknowledge the profundity of the violations of the human rights protected by the ECHR that it creates. 

Tuesday, 17 September 2013

'The Future Role of the European Court of Human Rights', a conference in Copenhagen

iCourts & Freedom Rights Project have announced details of a conference to be held in Copenhagen on 15 November 2013:

This conference addresses the question of what the role of the ECtHR should – and could – be in the contemporary and future protection of human rights in Europe.  It brings together a distinct group [of] distinguished European judges and renowned scholars from the field of human rights to debate these questions and suggest ways forward for the ECtHR.

Speakers at the conference include Professor Laurence Helfer (School of Law, Duke University), a specialist in ECHR sexual orientation law, and Nick Herbert (Member of the UK Parliament) who played a significant Parliamentary role in the recent enactment of the Marriage (Same Sex Couples) Act 2013 in England and Wales. 

Friday, 13 September 2013

The world according to Hollobone, Bone, and Chope - or why the UK needs the ECHR

On the 24th June 2013, three Members of the UK Parliament, with support from a small number of others, introduced forty Private Members' Bills on a wide range of issues. One of these Bills, introduced by Philip Hollobone, Peter Bone, and Christopher Chope, was scheduled to receive its Second Reading on 6th September in the House of Commons. 

The Face Coverings (Prohibition) Bill would, if enacted, make it a criminal offence for a person to wear 'any garment or other object intended by the wearer as its primary purpose to obscure the face in a public place'. The Bill has been characterised as the 'Ban the Burqa Bill' for its implicit ambition to prohibit certain forms of religious dress in public.

The Bill failed to get any Parliamentary time on 6th September, when MPs objected to its Second Reading. It will, however, get another opportunity on 28th February 2014. 

Before that, however, another Hollobone, Bone, and Chope sponsored Bill is scheduled to receive its Second Reading on 18th October. Although the Withdrawal from the European Convention on Human Rights and Removal of Alleged Terrorists Bill hasn't been printed, the short title indicates its general ambitions. 

The range of subjects covered by the Hollobone, Bone, and Chope Bills - which include reintroducing capital punishment, introducing special criminal sanctions for illegal immigrants, and imposing time limits on asylum applications - raise the central question of whether the UK needs its Human Rights Act or its obligations under the European Convention on Human Rights. 

Many of the Bills would fail to make Parliamentary progress, even if there was enough support for them among Parliamentarians, because they would likely fail to get a Statement of Compatibility with the Human Rights Act. Even if they did, challenges in the UK courts would ensue and litigation in the European Court of Human Rights would certainly follow. 

Although Hollobone, Bone, and Chope's Bills might be regarded as the work of 'cranks' - they were characterised as constituting an 'alternative Queen's speech' at the time they were presented - Bone describes them as 'an attempt to show that it is only the Conservatives who are on the common ground of British politics and represent the views of the electorate'. 

One aspect of that 'common ground' that Hollobone, Bone and Chope hope to promote relates to same-sex marriage. Their Same Sex Marriage (Referendum) Bill, somewhat redundant since the enactment of the Marriage (Same Sex Couples) Act 2013, presumes that there is wide support against same-sex marriage in the UK and aims to give voice to it. 

Reading the list of subjects covered, it is important to remember that many of the political ambitions they give expression to are unlikely to succeed because of the UK's commitment to the ECHR. And that might be one good reason why the UK needs the ECHR.

Here is the full list of the Bills:

  • Face Coverings (Prohibition) Bill
  • National Service Bill
  • European Communities Act 1972 (Repeal) Bill
  • Young Offenders (Parental Responsibility) Bill
  • Foreign National Offenders (Exclusion from the United Kingdom) Bill
  • Asylum Seekers (Return to Nearest Safe Country) Bill
  • Prisoners (Completion of Custodial Sentences) Bill
  • Fishing Grounds and Territorial Waters (Repatriation) Bill
  • School Governing Bodies (Adverse Weather Conditions) Bill
  • Capital Punishment Bill
  • Government Departments (Amalgamation of Scotland Office, Wales Office and Northern Ireland Office) Bill
  • Residential Roads (Adoption by Local Highways Authorities) Bill
  • Equality and Diversity (Reform) Bill
  • Sentencing Escalator Bill
  • Leasehold Reform (Amendment) Bill
  • BBC Licence Fee (Civil Debt) Bill
  • Smoking (Private Members’ Clubs) Bill
  • Margaret Thatcher Day Bill
  • Department of Energy and Climate Change (Abolition) Bill
  • Married Couples (Tax Allowance) Bill
  • Foreign Aid Ring-Fencing (Abolition) Bill
  • Charitable Status for Religious Institutions Bill
  • Same Sex Marriage (Referendum) Bill
  • Wind Farm Subsidies (Abolition) Bill
  • Withdrawal from the European Convention on Human Rights and Removal of Alleged Terrorists Bill
  • Romanian and Bulgarian Accession (Labour Restriction) Bill
  • BBC Privatisation Bill
  • Office of the Deputy Prime Minister (Abolition) Bill
  • Prime Minister (Replacement) Bill
  • United Kingdom (Withdrawal from the European Union) Bill
  • Asylum (Time Limit) Bill
  • Benefit Entitlement (Restriction) Bill
  • Illegal Immigrants (Criminal Sanctions) Bill
  • Sexual Impropriety in Employment Bill
  • Collection of Nationality Data Bill
  • Foreign Nationals (Access to Public Services) Bill
  • House of Lords (Maximum Membership) Bill
  • Control of Offshore Wind Turbines Bill
  • Employment Opportunities Bill
  • EU Membership (Audit of Costs and Benefits) Bill

Wednesday, 11 September 2013

M.K.N. v Sweden

Aside from my posts on 28th June and 22nd July, and Dr. Loveday Hodson's guest post on 26th July, there appears to have been no further discussion of the European Court of Human Right's decision in M.K.N. v Sweden

In its judgment the Court dismissed the applicant's complaint that his deportation from Sweden to Iraq would put him at risk of being subject to treatment in violation of Article 3 of the European Convention on Human Rights. The applicant, a married man with a wife and two children, claimed that one of the reasons that he was at risk of treatment that would violate his Article 3 rights was because of potential persecution in light of a previous homosexual relationship.

The European Commission on Sexual Orientation Law now include the judgment in their list of sexual orientation judgments issued by the Court - and, as I did, they characterise the substantive issue in this case as 'how to prove homosexuality'.

Furthermore, the Netherlands Institute of Human Rights have provided a factual discussion of the group of similar facts cases to which M.K.N. v Sweden belongs. This is interesting insofar as it gives broader context to the specific issues raised about homosexuality by the applicant.

I hope that further discussion of this case is forthcoming in the future.  

Monday, 9 September 2013

Court launches new print and online collections of leading cases

The European Court of Human Rights has launched today new print and online collections of its leading case-law "in order to heighten awareness of the most important cases and encourage their application at domestic level".

The Court has now also "published online all previously printed volumes of its Reports in a new e-Reports collection which will be updated continuously and will ultimately become available under Case-Law/e-Reports".

Information can be found here:

This is a good resource for exploring the key sexual orientation related judgments of the Court over recent years.

Thursday, 5 September 2013

H. v Finland - a 'Christian-inspired' critique

Gregor Puppinck, Director of the European Centre for Law and Justice (a 'Christian-inspired organisation'), has written a commentary on H. v Finland. This case, as I detailed in an earlier post, has been referred to the Grand Chamber of the European Court of Human Rights.

Writing in Zenit ('an international, non-profit news agency staffed by a team of professionals and volunteers who are convinced that the extraordinary wisdom of the Pontiff and the Catholic Church can nourish hope, and assist all of humanity to find truth, justice and beauty') Puppinck makes a number of criticisms of the Court's original judgment and its decision to refer the case to the Grand Chamber.

Puppinck argues that it is 'not clear' how the issues raised in the case relate to the requirement (under Article 43 of the Convention) that any referral to the Grand Chamber must raise a serious question affecting the interpretation or application of the Convention, or a serious issue of general importance.

Even within the limited terms of the Convention, it is difficult to understand how anyone could not see the 'serious question' or 'serious issue' involved. The Convention provides an unqualified right to marriage (for men and woman of marriageable age) and the issue facing the applicant, as a transsexual, is the legal requirement that she divorce her wife in order to obtain legal recognition of her assumed sex. For individuals in the applicant's circumstances, the state's refusal to recognize a marriage as legally valid following gender reassignment, and the compulsion to divorce that this creates, is undoubtedly a serious question requiring an interpretation of the Convention by the Court.

Yet, Puppinck argues that it is not a serious issue or question that has driven the referral of this case to the Grand Chamber but, rather, 'the particular attention of judges desiring the development of "LGBT rights"'. Puppinck suggests that judges in the Court have decided 'that the time has come to establish a new right' for 'LGBT' people. He therefore regards this judicial activism as relating to lesbian, gay, bisexual, as well as, transgender issues. 

The argument that the Court is too pro-LGBT is, of course, a well worn one. But it is always surprising in the context of the longer history of LGBT related complaints in the Court. Depicting the Court as intent on continuously promoting LGBT interests may have some rhetorical or ideological cache, but it belies the empirical reality of the Court's jurisprudence and case history.

Puppinck's chief criticism of the Court relates to its acceptance of what he calls 'a double definition of sex'. That is: '[t]he objective definition which considers the biological sex, and the subjective definition, which considers the social sex'. Puppinck is critical of the Court's production of the 'legal fiction' that 'social sex' can be the basis for protection under the Convention. He argues: 'the purpose of legal fictions is not to emancipate us from reality, through the law, but the normal function of re-establishing concordance between the law and reality'.

The distinction between 'biological' and 'social' sex that Puppinck makes is, for social scientists, deeply problematic. Sociologists, for example, have long argued that what is regarded as 'biological' sex is in fact socially constructed. In other words, that the material reality of biological sex only assumes meaning in respect of social relations and norms. Whilst the Court cannot be said to have wholly adopted this constructivist understanding of sex/gender, it has been more subtle in its approach than Puppinck. 

For example, in Christine Goodwin v the United Kingdom the Court stated that, given the 'increasingly sophisticated surgery and types of hormonal treatments available, the principal unchanging biological aspect of gender identity is the chromosomal element'. However, the Court noted that 'chromosomal anomalies may arise naturally (for example, in cases of intersex conditions where the biological criteria at birth are not congruent) and in those cases, some persons have to be assigned to one sex or the other as seems most appropriate in the circumstances of the individual case'. The Court therefore acknowledged the social influence on biological sex even in respect of chromosomal difference. In light of this, the Court was not persuaded that 'the state of medical science or scientific knowledge provides any determining argument as regards the legal recognition of transsexuals'.

The Court's reasoning in Christine Goodwin was not an attempt to divorce law from reality. Rather, the Court went to significant lengths to try to make law better reflect reality. It achieved this by recognizing that 'a test of congruent biological factors can no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual' because of 'other important factors', such as: 'the acceptance of the condition of gender identity disorder by the medical professions and health authorities within Contracting States, the provision of treatment including surgery to assimilate the individual as closely as possible to the gender in which they perceive that they properly belong and the assumption by the transsexual of the social role of the assigned gender'.

In Christine Goodwin, the Court's jurisprudence was aimed at undoing a legal fiction - the fiction expressed in laws that do not recognize the existence of transsexuals - in order to make law congruent with reality. In H. v Finland, the same basic issue is at stake, which is that the reality of an individual's existence is incongrous with the law. Those who want to maintain the heteronormativity of marriage and have the law reflect it may find comfort in claims about 'objective biological sex', but the Court has already dismissed similar 'scientific' claims. Therefore, those opposed to same-sex marriage - which is the key issue in H. v Finland - need a more robust justification for why human rights law should reflect their particularly narrow and exclusionary vision of reality. A vision of reality that is, ultimately, a fiction.  

Tuesday, 3 September 2013

Monday, 2 September 2013

Welcome back and 'Judgments of the European Court of Human Rights – Effects and Implementation' conference

Welcome back to the ECHR Sexual Orientation Blog after the summer break. I hope you have had a good August.

I'll try to post as often as I can on the Court's sexual orientation judgments in this session, as well as other Council of Europe related developments.

As ever, if anyone has information or suggestions for the Blog please email me. Guest Posts are especially welcome!


'Judgments of the European Court of Human Rights – Effects and Implementation'

On 20-21 September, the Institute for International Law, Goettingen University, will host a high level conference on aspects of the Court's judgments.

Full details are available here:

If anyone else with an interest in the LGTB work of the Court is attending this event, please let me know!