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European Human Rights Court Rules Against Russia on “Homosexual Propaganda” Laws

Posted on: June 20th, 2017 by Art Leonard No Comments


A seven-member chamber of the European Court of Human Rights in Strasbourg issued a judgment on June 20 in the case of Bayev & Others v. Russia, Applications nos. 67667/09 and 2 others, holding that local and national laws in Russia making it an administrative offense for somebody to “promote homosexuality among minors” or to promote “non-traditional sexual relations” violates the free speech and equality provisions of the European Convention on Human Rights.  The Parliament of the Russian Federation ratified the Convention in 1998, during the period of liberalization in that country, but in 2015 the Parliament approved a draft law endorsed by President Vladimir Putin authorizing Russia to ignore rulings of the European Court of Human Rights when they were inconsistent with the Russian Constitution.  Despite their proclaimed purpose of protecting minors, the laws have been aggressively enforced to prevent public demonstrations in support of LGBT rights.

The Bayev case consolidated applications to the court by three Russian gay rights advocates, Nikolay Bayev, Aleksey Kiselev, and Nikolay Alekseyev, each of whom had been prosecuted under either the local laws or the federal law, all of which made it an administrative offense, punishable by a fine, to “promote homosexuality” or “non-traditional relationships” to minors.  These applicants had demonstrated with banners asserting the normality of homosexuality, in two cases in places where children were likely to see them (schools, libraries) and in one case in front of a government building.  Each of them was fined, and their appeals were rejected by the constitutional courts in Russia.

In defending the laws, the Russian government insisted that they were within its authority, and consistent with the European Convention, to protect the morals of youth and the demographic and health concerns of the nation by prohibiting such “promotion.”  The government pointed to the severe demographic challenge faced by Russia, which has suffered a declining population, as well as the risks of HIV transmission through homosexual activity and the need to channel Russian youth into traditional heterosexual family relationships to produce more children.

The applicants pointed to the protection for freedom of expression and equality under Articles 10 and 14 of the Convention, contending that the government had not provided adequate justification for censoring the applicants’ messages.

The seven-member chamber, whose judgment will be appealed by Russia to a larger “Grand Chamber” of the court, included judges from Sweden, Spain, Switzerland, Slovakia, Cyprus and the Netherlands, as well as a Russian judge, who was the lone dissenter from the judgment.

The court thoroughly rejected the Russian government’s argument in support of the laws.  The government admitted that the laws restricted freedom of expression, but claimed that the restriction fell within the “margin of appreciation” for justified restrictions.  While noting the government’s argument that the “margin of appreciation” is wide “where the subject matter may be linked to sensitive moral or ethical issues” as to which there is no European consensus, in this case, the court said, “there is a clear European consensus about the recognition of individuals’ right to openly identify themselves as gay, lesbian or any other sexual minority, and to promote their own rights and freedoms,” citing to its earlier judgment in a case brought by Mr. Alexeyev in opposition to the earliest local enactment of a similar law.

Seeking to justify its position, the government alleged the “incompatibility between maintaining family values as the foundation of society and acknowledging the social acceptance of homosexuality,” but the court was not convinced.  “The Court sees no reason to consider these elements as incompatible, especially in view of the growing general tendency to include relationships between same-sex couples within the concept of ‘family life’ and the acknowledgement of the need for their legal recognition and protection.”  After noting the strong trend in Europe towards recognition for same-sex relationships, and suggesting that the court’s jurisprudence had to move with the times, the court also noted the strong desire of same-sex couples to form families and raise children. Furthermore, said the court, “The Government failed to demonstrate how freedom of expression on LGBT issues would devalue or otherwise adversely affect actual and existing ‘traditional families’ or would compromise their future.”

“The Court has consistently declined to endorse policies and decisions which embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority,” said the court. “It held that these negative attitudes, references to traditions or general assumptions in a particular country cannot of themselves be considered by the Court to amount to sufficient justification for the differential treatment, any more than similar negative attitudes towards those of a different race, origin or color.”  The court found that the challenged Russian laws are “an example of such predisposed bias,” and rejected the idea that because the majority of Russians strongly oppose homosexuality, that would justify the government in abridging the freedom of expression of gay people seeking to protect their rights.  Thus, the Court rejected the government’s argument that “regulating public debate on LGBT issues may be justified on the grounds of the protection of morals.”

The court also rejected the government’s argument that the laws could be justified as public health measures or as a means to address the country’s demographic problems. In fact, the court pointed out, ignorance about homosexuality would be counterproductive as a public health measure, and there was no evidence that suppressing all discussion of homosexuality that could come to the attention of minors would contribute to growth of the Russian population.  “Population growth depends on a multitude of conditions, economic prosperity, social-security rights and accessibility of childcare being the most obvious factors among those susceptible to State influence,” wrote the court.  “Suppression of information about same-sex relationships is not a method by which a negative demographic trend may be reversed. Moreover, a hypothetical general benefit would in any event have to be weighed against the concrete rights of LGBT individuals who are adversely affected by the impugned restrictions. It is sufficient to observe that social approval of heterosexual couples is not conditional on their intention or ability to have children.”

The court also found that the laws could not be justified as a measure to “protect the rights of others,” such as minors themselves or their parents. The laws did not prevent parents from instructing their children or promoting traditional heterosexual relationships to their children.  Furthermore, the laws as interpreted by the Russian courts and applied to the applicants in these cases were clearly both vague and overly broad, extending to activities that were hardly likely to undermine parental authority or to harm children.

The court found that the biased views underlying the laws also supported the applicants’ arguments that the laws violate Article 14 of the Covenant, which guarantees equality.

As a remedy, the court ordered that the Russian government refund to the applicants the fines they had been ordered to pay, and also awarded them monetary damages to compensate for expenses incurred in connection with this litigation. Also, wrote the court, “it considers that the applicants suffered stress and anxiety as a result of the application of the discriminatory legal provisions against them. It also notes that the impugned legal provisions have not been repealed and remain in force, and thus the effects of the harm already sustained by the applicants have not been mitigated,” so it awarded additional damages as compensation. The amounts awarded were relatively trivial.

The Russian judge on the panel, Dmitry Dedov, submitted a dissenting opinion that channeled the arguments of the Russian government, particularly as they were articulated by the constitutional court in rejecting the appeals in these cases.

The government contended that the challenged measures are non-discriminatory, do not impose criminal sanctions for homosexual conduct and do not single out homosexuals for suppression of their expression, but rather focus on socially harmful messages that everybody, whether gay or straight, are prohibited from sending to minors. Dedov contended that the court erred by focusing on a “conflict of rights” rather than on the government’s “legitimate aim” in promoting the morals and health of minors and Russian society.  He contended that what the local governments and the Federal government had done was well within their appropriate role to promote social welfare, and particularly the well-being of vulnerable minors, and that the court was mistaken in treating this as a case about discrimination.

“Needless to say,” he wrote, “sexual identification, as well as sexual orientation, is a very intimate process, albeit influenced by social life and social relations. The international instruments, including the CRC, recognize that children should primarily consult their parents or close members of the family, rather than obtaining information about sex from the applicants’ posters in the street.”  He argued that it was for the government to determine how to educate minors about their social roles, contending that “it is commonly recognized that sex education is a very sensitive area where the dissemination of information should be carried out very carefully.”

The Russian news agency, Tass, quickly reported that the Russian Justice Ministry would appeal the decision and contest the remedy, which totaled about 49,000 euros. The statement from the Ministry reiterated Judge Dedov’s main point, arguing that “the provisions of a number of regional laws banning LGBT propaganda among minors do not contradict international practices and are aimed exclusively at protection of children’s morality and health.”

The full text of the opinion in English is available on the court’s website, as well as a press release summarizing the decision.

European Human Rights Court Says Italy Must Create A Legal Structure for Same-Sex Couples

Posted on: July 22nd, 2015 by Art Leonard No Comments

A seven-judge chamber of the European Court of Human Rights (ECHR) in Strasbourg has ruled that Italy’s failure to adopt a legal structure for same-sex relationships, such as a civil union or registered partnership similar to those in other European countries such as Austria or Germany, violates Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, a treaty to which 47 European countries are signatories.  The ruling in the Case of Oliari and Others v. Italy, Applications Nos. 18766/11 and 36030/11 (July 21, 2015), brought a unanimous conclusion, but the panel of judges was split 4-3 about the appropriate analysis and which section of Article 8 applies in the case.  Italy may petition for review by a larger panel of judges, called a Grand Chamber, before this decision becomes final.

The decision resulted from claims filed by three same-sex male couples.  Each of the couples sought to marry, each was turned down, and each sought relief without success in the Italian judicial system.  Ironically, several years ago Italy’s Constitutional Court had ruled that the nation is obligated to create a legal structure akin to marriage for same-sex couples, such as a civil union law, but thus far the Parliament has not acted on this mandate.  In the meantime, several municipalities had created registries for same-sex partners, but they have primarily symbolic value, as the municipalities cannot create legally enforceable rights under national law.  On the other hand, cohabiting same-sex couples in Italy are accorded several substantial rights in the absence of a formal legal relationship, as part of legal developments in Italy and in much of Europe that has recognized legal consequences of cohabitation.  The couple from Trent filed their appeal with the ECHR on March 21, 2011, and the two couples from Milan filed on June 10, 2011.  They contended that denial of their marriage applications violates Articles 8, 12 and 14 of the Convention.

Jurisprudence under the European Convention relies heavily on developing the meaning of the broadly-worded guarantees in light of emerging trends among the member nations.  In this regard, it is important to the court to keep track of European developments.  The court noted that eleven countries that are members of the Council of Europe now allow same-sex marriages: Belgium, Denmark, France, Iceland, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, and the United Kingdom.  In addition, of course, a recent referendum will extend marriage equality to the Republic of Ireland later this year, and Finland has legislated for marriage equality to come into effect in 2017, although there is a possibility that the Parliament may have to reconsider the issue in light of a recently-filed public petition.  Eighteen member states have some form of civil partnership open to same-sex couples.  Some of these also allow same-sex marriages, but give their residents a choice between the two.  These civil partnership states are Andorra, Austria, Belgium, Croatia, the Czech Republic, Finland, France, Germany, Hungary, Ireland, Liechtenstein, Luxembourg, Malta, the Netherlands, Slovenia, Spain, Switzerland, and the U.K.  In addition, Estonia’s Registered Partnership Act will go into effect on January 1, 2016. Totaling things up, the court observed that 24 out of 47 CoE members now have some form of legal recognition for same-sex partners in effect, either marriage, civil union or registered partnerships, with the number to increase by several more over the next year or so.

Since more than of half the member nations are now extending such recognition, the court is in a position to decide that legal recognition has become enough of a norm in Europe so that Article 8 comes into play.  Article 8 has two numbered paragraphs.  Paragraph 1 provides that “Everyone has the right to respect for his private and family life, his home and his correspondence.”  Paragraph 2 provides that “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.”  The general principles expressed in the Convention are subject to a “margin of appreciation” for the autonomy of member nations in exercising their discretion about whether and when to adopt particular policies.  The margin of appreciation varies depending upon the importance of the right and the countervailing concerns of each member nation.  Decisions by the ECHR are not self-executing.  It is up to member nations to respond to the rulings of the court through their own legislative and judicial processes.  Rulings by the ECHR are more than merely advisory opinions, because they are authoritative statements of treaty obligations, but it is up to each member state to take steps to comply with those obligations.

In describing how the requirement of “respect for private and family life” plays out in this case, the court commented, “Of relevance to the present case is the impact on an applicant of a situation where there is discordance between social reality and the law, the coherence of the administrative and legal practices within the domestic system being regarded as an important factor in the assessment carried out under Article 8.  Other factors relate to the impact of the alleged positive obligation on the State concerned.  The question here is whether the alleged obligation is narrow and precise or broad and indeterminate or about the extent of any burden the obligation would impose on the State.”

In the recent past, the ECHR has ruled that Greece violated the Convention when it established a civil union system but excluded same-sex couples, thus running afoul of the non-discrimination requirement in Article 14.  It also found relatively recently that Austria had not violated Article 12 of the Convention (the right to marry) by failing to open up marriage to same-sex couples, and that its adoption of a civil union law that had not yet gone into effect would constitute respect for private life and family under Article 8.  Referring to these recent decisions, the court said: “The Court reiterates that it has already held that same-sex couples are just as capable as different-sex couples of entering into stable, committed relationships, and that they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship.  It follows that the Court has already acknowledged that same-sex couples are in need of legal recognition and protection of their relationship.”

The willingness of Italian courts to enforce cohabitation contractual agreements was seen by the court as not sufficient to deal with the needs of same-sex couples for recognition and protection, and the court rejected the Italian government’s argument that same-sex couples should be relegated to litigating about particular legal claims as they arise.  “In the Court’s view,” it said, “the necessity to refer repeatedly to the domestic courts to call for equal treatment in respect of each one of the plurality of aspects which concern the rights and duties between a couple, especially in an overburdened judicial system such as the one in Italy, already amounts to a not-insignificant hindrance to the applicants’ efforts to obtain respect for their private and family life. This is further aggravated by a state of uncertainty.”  The reference to Italy’s “overburdened judicial system” reflects the reality that litigation there takes a long time due to the understaffed and heavily bureaucratic court system.

The court asserted that passing a law “to provide for the recognition and protection of same-sex unions” would “not amount to any particular burden on the Italian State be it legislative, administrative or other.  Moreover, such legislation would serve an important social need,” pointing out that it is estimated that “there are around one million homosexuals (or bisexuals), in central Italy alone.”  The court noted that the Italian government, in response to this case, had “failed to explicitly highlight what, in their view, corresponded to the interests of the community as a whole.” Instead, their position was that the ECHR should be patient and allow the Italian government to develop and pass legislation in its own time-frame.  The court pointed out that Italy had not asserted any interest in protecting “the original concept of the family or the morals of society” as a reason for failing to legislate on this subject. “The Government instead relied on their margin of appreciation in the choice of times and modes of a specific legal framework.”  The court pointedly observed that “in the present case the Italian legislature seems not to have attached particular importance to the indications set out by the national community, including the general Italian population and the highest judicial authorities in Italy,” referencing public opinion polls showing overwhelming popular support for providing civil unions for same-sex couples as well as a Constitutional Court ruling, with which the government has yet to comply, holding that the state was obligated to adopt such legislation.

“In conclusion,” wrote the court, “in the absence of a prevailing community interest being put forward by the Italian Government, against which to balance the applicants’ momentous interests as identified above, and in the light of domestic courts’ conclusion on the matter which remain unheeded, the Court finds that the Italian Government have overstepped their margin of appreciation and failed to fulfill their positive obligation to ensure that the applicants have available a specific legal framework providing for the recognition and protection of their same-sex unions.  To find otherwise today, the Court would have to be unwilling to take note of the changing conditions in Italy and be reluctant to apply the Convention in a way which is practical and effective.”

At the same time, the court said that there was not yet enough consensus on the matter in Europe to take the next step and require Italy to open up marriage to same-sex couples as an application of Article 12.  The court exercised its authority under Article 41 to award monetary damages to the applicants as well as money to cover some of the costs of the litigation.

While the finding of a violation of Article 8 was unanimous, three out of the seven judges submitted a separate opinion taking narrower approach.  They emphasized that because Italy’s Constitutional Court had already ruled that the government had an obligation under the Italian Constitution to adopt a civil union law, it was not necessary for the ECHR to find such an affirmative obligation in Article 8.  Instead, they would ground the court’s ruling on the Italian government’s failure to take the steps mandated by Italy’s Constitutional  Court, as an “interference” with the rights of the applicants in violation of Paragraph 2 of Article 8.  This narrower ruling would leave unaddressed the question whether other nations signatory to the Convention who have not yet adopted civil union laws are obligated to do so under Paragraph 1. But a close reading of the majority opinion shows that it is also very much grounded in the developments that have already taken place in Italy in terms of growing public support for same-sex civil unions, the actions of municipalities in registered same-sex couples (over the objections of some federal officials), and the ruling by the Constitutional Court.  Thus, even the majority opinion could not be seen as firmly establishing a general obligation for all nations signatory to the Convention to adopt civil union laws immediately.  However, the opinion strongly intimates that as the number of European countries with such laws continues to increase, the obligation of signatories to move in accord with the emerging European norm is growing.

The attorneys representing the applicants in this case included Mr. A. Schuster, a lawyer practicing in Trent, and Ms. M. D’Amico, Mr. M. Clarra, and Mr. C. Pieta, lawyers practicing in Milan.

European Human Rights Court Rejects Discrimination Claim by Finnish Transgender Woman

Posted on: July 18th, 2014 by Art Leonard No Comments

A Grand Chamber (17 judges) of the European Court of Human Rights has rejected a claim by a transgender woman from Finland that her European Convention rights were violated when the Finnish government would not recognize her correct gender unless her wife agreed to have their marriage converted into a registered partnership.  The July 16  ruling in Hamalainen v. Finland drew a strong dissenting opinion from three judges on the court.

Ms. Hamalainen, a resident of Helsinki, was identified male at birth but has always felt that she was female.  She struggled to cope with her male gender role, but in 1996, when she was 33, she married a woman and they had a child in 2002. Her unease inhabiting a male role worsened, and she sought medical help in 2005.  In April 2006 she was diagnosed as transgender and she has lived as a woman since then, undergoing transition surgery in September 2009.  After her 2006 diagnosis, she changed her name and renewed her passport and driver’s license, but her attempt to get her Finnish identity number changed has been unsuccessful.  As of now, both her passport and her identity number mark her as male.  This has generated problems in everyday life, as her official identification documents conflict with her appearance and gender role.

The reason why the government will not officially identify her as female is because she remains married to her wife.  Finnish marriage law restricts marriage to different-sex couples.  Finland did adopt a registered partnership law for same-sex couples, which carries almost all the rights of marriage under national law.  Finland also has a transgender recognition law, but it provides that a married person’s gender transition will not be officially recognized unless their spouse consents to their marriage being converted to a registered partnership.  To do otherwise, contends the Finnish government, would violate the marriage law and undermine the nation’s policy of preserving the traditional definition of marriage.  There are proposals pending in the Parliament to adopt a marriage equality law, but so far they have not succeeded.  Ms. Hamalainen’s other alternative, if she wants official recognition of her female identity, would be to divorce her wife.

The complication here is that neither Ms. Hamalainen nor her wife want a divorce.  They also don’t want a registered partnership, as this would mark the wife socially as a lesbian, which she decidedly is not.  They are deeply religious people who consider marriage a sacred bond, reject the idea of divorce, and believe that they should stay married and continue to raise their child together.  Ms. Hamalainen expressed concern that her parental rights might be compromised if she is not married to her child’s mother.

Ms. Hamalainen argued that Finland’s refusal to accommodate her by recognizing her female sex but leaving her marriage intact violates three articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms:  Article 8, which protects privacy and respect for private life; Article 12, which protects the right to marry; and Article 14, which forbids discrimination because of sex and has been interpreted also to prohibit discrimination because of sexual orientation and gender identity.  In 2012 a smaller panel of judges rejected her claim, and she requested that the case go to a Grand Chamber, which held a hearing on the case in October 2013.

The court agreed that all three of the provisions of the Convention potentially applied in this case, but ultimately determined that Finland’s position does not violate the Convention.  Ms. Hamalainen’s claims ran aground mainly on the Court’s preference to look to consensus or strongly emerging trends among the nations that are signatories to the Convention in deciding on the substance of protected rights.  Taking the position that what she is seeking is to have a recognized same-sex marriage, the court noted that ten member states of the Council of Europe permit same-sex marriages: Belgium, Denmark, France, Iceland, Norway, Portugal, Spain, Sweden, the Netherlands and the United Kingdom (but only in England and Wales as of now, as the Scottish marriage equality law has not yet come into effect).  In those countries, of course, the gender of marital partners is no longer an issue.  On the other hand, 24 member states “have no clear legal framework for legal gender recognition or no legal provisions which specifically deal with the status of married persons who have undergone gender reassignment.”  Six countries that don’t at present allow same-sex marriages do have relevant legislation: Hungary, Italy, Republic of Ireland, Malta, Turkey and Ukraine.  “In these States the legislation specifically requires that a person be single or divorced, or there are general provisions in the civil codes or family-law provisions stating that after a change of sex any existing marriage is declared null and void or dissolved.”  As of now, only three countries that are parties to the Convention would accommodate this kind of case: Austria, Germany, and Switzerland.

Thus, a European consensus in favor of Hamalainen’s claim doesn’t exist.  Furthermore, in recent cases the Court has said that Articles 8 and 12 do not require member states to allow same-sex couples to marry, or thus to render gender irrelevant to marriage, although the  Court has found violations of the Covenant when states refuse to provide an alternative legal status for same-sex couples that provides substantially all the rights of marriage.  Within the Council of Europe, civil unions or the like are the minimally acceptable requirement to conform to the obligation for respect for private life. (Italy is the major outlier here in Western Europe, and the government is moving towards some kind of civil union law.)  Since officially recognizing Ms. Hamalainen as female while married to a woman would be, effectively, to allow a same sex marriage, the Court refused to rule in her favor, having found that under existing European human rights law, Finland has a right to reserve marriage for different-sex couples.

The Court’s jurisprudence focuses on the “margin of appreciation” that member states have in terms of complying with established human rights norms.  In the past, the Court has said the margin of appreciation is narrow in sexual orientation or gender identity discrimination cases, which means that states must have good policy reasons for maintaining policies that discriminate on these grounds.  This reflects the emerging consensus among member states that such discrimination improperly intrudes on the autonomy of the individual.  However, as there is no European consensus on marital rights of transgender individuals, “the Court considers that the margin of appreciation to be afforded to the respondent State must still be a wide one.”

The Court found that since Finland has extended to same-sex registered partnerships almost all the legal rights of marriage, it had struck a “fair balance” between the individual’s claims in this case and the nation’s interest in preserving its traditional definition of marriage.  The Court rejected Hamalainen’s contention that Finland was effectively forcing her to divorce her wife if she wanted the state to recognize her correct sex, in light of the registered partnership alternative.  As long as her wife withheld consent from this alternative, however, it appears that Hamalainen must seek a divorce if she wants to have her gender properly recorded in her passport and indicated in her national identity number.

The Court made short work of the argument that Finland’s policy violates the right to marry, pointing out that Hamalainen is married already and was not denied that right.  The Court rejected her “equal protection” claim, finding the lack of comparators necessary to analyze a discrimination claim.

The dissenters rejected the Court’s conceptualization of the case, particularly arguing against the idea that the lack of a consensus among European states about how to treat this issue meant that Finland should have a “wide margin of appreciation” in deciding how to deal with it.  While conceding that the lack of a consensus was one factor to consider, the dissenters argued, “that same margin is restricted where a particularly important facet of an individual’s existence or identity is at stake.”  The dissenters argued that the Court “has some discretion regarding its acknowledgement of trends,” and in the past has not let the absence of a consensus get in the way of a ruling where an individual has a strong claim.  The dissenters note, for example, a landmark ruling involving transgender rights in England, the Christine Goodwin case, where the court held that “the lack of such a common approach among forty-three Contracting States with widely diverse legal systems and traditions is hardly surprising.  The Court accordingly attaches less importance to the lack of a common European approach to the resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a continuing international trend in favor not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals.”  This decision led to a decisive change in English law, prompting the Parliament to undertake a study and enact a gender recognition statute that has become a model for other British Commonwealth countries. England’s recent enactment of marriage equality, of course, has solved the particular problem that Hamalainen faces in Finland.

The dissenters rejected the Court’s conclusion that Ms. Hamalainan had a “real choice between maintaining her marriage and obtaining a female identity number” just because the state would treat her marriage as a registered partnership if her wife consented.  “We believe that it is highly problematic to pit two human rights — in this case, the right to recognition of one’s gender identity and the right to maintain one’s civil status – against each other.”  The dissenters were particularly critical of the Court’s failure to take account of the religious objections to divorce by Hamalainan and her wife, and to her wife’s continued identification as heterosexual, which would be compromised in society’s eyes by considering her a party to a registered partnership, a status in Finland reserved for same-sex couples who are perceived as gay or lesbian.  “In this regard,” wrote the dissenters, “we believe that the majority did not take important factual information sufficiently into account.” The dissenters also suggested that requiring Finland to recognize the continued marriage status of gender-transitioning spouses would hardly amount to a large enough number of cases to endanger the country’s general policy against same-sex marriages.  It would not destroy public order or undermine the security of the state.

The dissenting judges are from Hungary (Andras Sajo), Switzerland (Helen Keller), and Belgium (Paul Lemens).

European Courts Issue Important Gay Rights Decisions on November 7

Posted on: November 8th, 2013 by Art Leonard No Comments

European courts issued three significant decisions affecting the rights of LGBT people in Europe on November 7, 2013.  In Minister for Immigration and Asylum v. X, Y & Z (Joined Cases C-199/12 to C-201/12), the European Court of Justice in Luxembourg, which is the highest court on questions of European Union law, ruled favorably on the right of lesbian and gay people to seek asylum in Europe based on fear of persecution of gay people in their home countries.  In Vallianatos v. Greece (Applications Nos. 29381/09 and 32684/09), a Grand Chamber of the European Court of Human Rights in Strasbourg, which has the final word on interpretations of the European Convention on Human Rights, ruled that Greece had violated the Convention by adopting a civil union law that excluded same-sex couples.  In E.B. v. Austria, Applications Nos. 31913/07, 37357/07, 48098/07, 48777/07 and 48779/07, a section of the Human Rights Court preliminarily ruled that Austria had violated the Convention by refusing to delete records of criminal convictions of men who had been charged with engaging in sex with teenage boys under a law that had subsequently been declared invalid and replaced with a new law adjusting the age of consent and circumstances governing such acts.

The case from the European Court of Justice was construing, in part, a Geneva Convention on refugees to which the United States is also a party, as are many other countries outside of Europe.  The Dutch government had, somewhat surprisingly in light of the status achieved by gay people under Dutch law, rejected asylum claims from gay people from Sierra Leone, Uganda and Senegal, all African nations in which homosexual acts carry significant penal sanctions and there is pervasive social disapproval of homosexuality.  Internal appeals resulted in a request from the Dutch appellate courts for a ruling by the European Court of Justice on the circumstances under which gay people from outside of Europe can seek refugee status in Europe under the Geneva Convention and European laws.

The Court’s opinion embraced ideas that will be familiar to those acquainted with the developing case law on these questions in the United States.  As a threshold matter, the Court concluded that gay people “must be regarded as forming a particular social group,” a necessary finding in order to apply the refugee protections.  If members of a particular group are subject to persecution because of such membership in a particular country, they may be entitled to a grant of asylum by a country that is bound by the Geneva Conventions and relevant European law.  The fact that homosexual acts are a crime is not dispositive of this question, but “a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution,” the Court said.  Further, “When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.”  In other words, if an “out” gay person would likely be targeted for persecution in the country of origin, he or she may qualify for asylum.

These were apparently rulings of first impression for the Court, and are binding throughout the European Union.  Thus, as a practical matter, the ruling signals that LGBT people from countries in Africa, the Middle East, the Americas and Asia that may impose heavy criminal penalties for homosexual acts are likely to prevail on claims for refugee status if they can make their way to a European Union country, and their case will be strengthened if they can show that they had already been targeted for persecution in their home country.

The European Court of Human Rights’ decision in the challenge to the Greek civil union law turned heavily on the progress that LGBT people have made in achieving legal recognition for their relationships in countries that are signatory to the Convention on Human Rights, because the Court takes note of such trends in deciding whether the Convention’s broadly worded protection for family life and requirements for equal treatment have been violated.  The plaintiffs relied on a 2010 decision by the Court in Schalk and Kopf v. Austria, in which the Court had acknowledged that a cohabiting same-sex couple living in a “de facto partnership” came within the scope of family life protected by the Convention.  Thus, the government of Greece was in the position of having to justify a deliberate decision it made when establishing its new civil union status in 2008 for excluding same-sex couples.

The idea of civil unions was embraced because of the increasing phenomenon of different sex couples living together without marrying, and frequently having children within the context of such relationships.  The government decided that it would be useful to create a status less formal and structured than marriage that would be available to such couples, partly to protect the interests of their children, but also to protect the interest of surviving partners to inherit and to address other property interests.  At the time the new law was being debated, there was considerable discussion about the decision to omit same-sex couples, which was opposed by the National Human Rights Commission and the Scientific Council of Parliament, but the Minister of Justice stated that “society today was not yet ready to accept cohabitation between same-sex couples.”  The legislature proceeded to adopt the measure as proposed by the government, despite warnings that it might be held to violate Greece’s obligations under the Convention.  In defending its action before the Court, the government argued that same-sex couples could achieve many of the same rights bestowed on civil union partners through private contracting, but the plaintiffs argued that not all of these could be achieved and there were also intangible aspects of legal recognition.

In order for a law to violate the Contention’s provision on discrimination, the Court would first have to determine whether the plaintiffs’ “situation is comparable to that of different-sex couples wishing to enter into a civil union.”  As to that, “The Court reiterates that same-sex couples are just as capable as different-sex couples of entering into stable committed relationships.  It therefore considers that the applicants are in a comparable situation to different-sex couples as regards their need for legal recognition and protection of their relationship.”  Rejecting the government’s “private contracting” argument, the Court said, “even if it were to be considered valid, it does not take account of the fact that the civil partnerships provided for by [the Greek law] as an officially recognized alternative to marriage have an intrinsic value for the applicants irrespective of the legal effects, however narrow or extensive, that they would produce.”  Further, “Same-sex couples sharing their lives have the same needs in terms of mutual support and assistance as different-sex couples.  Accordingly, the option of entering into a civil union would afford the former the only opportunity available to them under Greek law of formalizing their relationship by conferring on it a legal status recognized by the State.  The Court notes that extending civil unions to same-sex couples would allow the latter to regulate issues concerning property, maintenance and inheritance not as private individuals entering into contracts under the ordinary law but on the basis of the legal rules governing civil unions, thus having their relationship officially recognized by the State.”

As to Greece’s argument that its motivation in adopting civil unions involved protecting children, the Court pointed out that same-sex couples also raise children who need the same protection.  “The Government’s arguments focus on the situation of different-sex couples with children, without justifying the difference in treatment arising out of the legislation in questions between same-sex and different-sex couples who are not parents,” it also observed.  The Court also pointed out that the explanatory report issued by the legislature “offers no insight into the legislature’s decision to limit civil unions to different-sex couples.”

Perhaps most significantly, the Greek law’s exclusion of same-sex couples made it a significant outlier from the emerging trend in Europe towards legal recognition for same-sex couples.  The Court observed that nine member states allow same-sex marriages, and seventeen member states “authorize some form of civil partnership for same-sex couples.  As to the specific issue raised by the present case,” continued the Court, “the Court considers that the trend emerging in the legal systems of the Council of Europe member States is clear: of the nineteen States which authorize some form of registered partnership other than marriage, Lithuania and Greece are the only ones to reserve it exclusively to different-sex couples.” The Court also noted resolutions by the European Parliament calling on member states to extend legal recognition to same-sex couples.

“The fact that, at the end of a gradual evolution, a country finds itself in an isolated position as regards one aspect of its legislation does not necessarily imply that that aspect conflicts with the Convention,” the Court wrote.  “Nevertheless, in the view of the foregoing, the Court considers that the Government have not offered convincing and weighty reasons capable of justifying the exclusion of same-sex couples from the scope of [the civil union law],” and thus found a violation of the Convention, and ordered the government to pay damages to the plaintiffs for the deprivation of their rights, rejecting the Greek government’s argument that a declaration of rights would be “sufficient redress for the non-pecuniary damage sustained by the applicants.”  The plaintiffs were awarded 5,000 Euros each as compensation, and Greece was also taxed with the Plaintiffs’ litigation costs.

In E.B. v. Austria, the Human Rights Court considered the refusal by Austrian authorities to “delete the criminal convictions from [the applicants’] criminal records, even though the offence in question had been abolished.”  Each of the five applicants had been convicted of engaging in “homosexual acts with consenting adolescents within the age bracket of 14 to 18.”   The Constitutional Court of Austria found the relevant criminal law provision to be unconstitutional in 2002, largely on grounds that the provision in question applied only to men having sex with boys, there being no parallel application to girls.  Subsequently, Austria repealed the provision in question, adopting a new law revising the age of consent downward and adjusting the circumstances under which criminal penalties would apply to sexual acts involving teenagers, turning on issues such as the maturity of the teen, among other factors.  However, the new law did not provide for adjusting the status of persons who had been convicted under the old law, and Austrian authorities rejected attempts by the plaintiffs to have their convictions reconsidered or their records corrected.

The Court found that “the storing by a public authority of information relating to an individual’s private life amounts to an interference within the meaning of Article 8, and that the protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the Convention.”  Noting that criminal laws get revised from time to time, the court  observed that in the normal event of such revisions, there would be no obligation to adjust or expunge criminal records just because of such legislative changes.  “The situation is different, however, as regards convictions under Article 209 of the Criminal Code,” said the Court, because the legislature had repealed and replaced the provision after the Constitutional Court found it to be unconstitutional.  Thus, the new law was adopted “not as part of a general process to adapt the Criminal Code to respond to the needs of a changing society, but to eliminate a provision that was in contradiction to the Federal Constitution.”

“Since keeping an Article 209 conviction on someone’s criminal record may have particularly serious consequences for the person concerned,” wrote the Court, “the legislator, when amending the relevant legal provision in order to bring it into conformity with modern standards of equality between men and women, should have provided for appropriate measures, such as introducing exceptions to the general rule.  The Government, however, have not provided any explanation as to the purpose of leaving unamended the provision on maintaining convictions on the criminal record,” so the Court concluded that Article 8 was violated.    The Court awarded the applicants damages of 5,000 Euros each, and also awarded litigation costs.  Because this is a ruling by one section of the Court, it is subject to appeal by the Austrian government.

ECHR: Unmarried Same-Sex and Different-Sex Couples Entitled to Equal Treatment

Posted on: February 22nd, 2013 by Art Leonard No Comments

A Grand Chamber (17 judges) of the European Court of Human Rights (based in Strasbourg) ruled on February 19 that Austria violated the European Convention for the Protection of Human Rights and Fundamental Freedoms by maintaining a statutory scheme under which “second-parent” adoptions are available for unmarried different-sex couples but not for same-sex couples (who do not have the right to marry in Austria).  By a vote of 10-7, the court found that the applicants in the case, a lesbian couple and the son they are raising, are entitled to a new trial to determine whether the best interests of the child justify overruling the objections of his biological father to the proposed adoption by his mother’s same-sex partner.  X and Others v. Austria, Application No. 19010/07.  Ironically, this case has dragged on so long since the adoption petition was filed in 2005 that the child will probably reach the age of majority before the case is finally resolved.

Under Austrian law, same-sex couples cannot jointly adopt children, but there is no bar to individual gay adults adopting a child.  However, in the case of unmarried adult partners where one wishes to adopt the child of the other, the consent of the child’s other parent may be required, although a court can overrule such objections if it finds that the best interest of the child will be served by doing so, and the adoption may not result in the child having two mothers or two fathers.  The Austrian statutes require that if a child is to have two legal parents, they must be one man and one woman. 

In this case, the birth mother had a child with a man to whom she was not married and was not cohabiting.  She is recognized as sole custodian of the child, who was born in 1995, but the father “has recognised paternity” and has maintained a relationship with the child, seeing him regularly and providing financial support.  Since the child was five years old, he and his mother have been living together with his mother’s same-sex partner.  In 2005, the three of them made an agreement for the partner to adopt the child without terminating the parental status and rights of his mother, but the father, whose parental status would be affected by this adoption, objected to the application they filed with the District Court.  That court found that under the Austrian statutes this adoption could not be approved, because it would result in the child having two mothers.  The court did not have to get to the question whether the father’s objections should be overruled.  Through the Austrian appellate process to the Regional Court and the Constitutional Court, the Austrian courts all rejected the argument that this restriction violates the constitutional rights of the applicants, or their rights under the European Convention, to which Austria is a party.

Before the European Court, the applicants asserted that they were not seeking to have equal rights with different-sex married couples, but rather were seeking to be treated equally with unmarried different-sex couples.  This was a prudent move, since the European Court has found in recent litigation involving Austria that the equality requirements (Article 14) as applied to the right to respect for private life (Article 8) do not require parties to the Convention to allow same-sex couples to marry, although the Court may get there some day as a trend towards allowing same-sex marriage spreads among the countries bound by the Convention.  (The possible addition of Britain and France this year could have an important effect in that regard.)  Thus, court was unanimous in concluding that a comparison to the “second-parent” adoption rights of married couples (what in the U.S. we commonly call step-parent adoption) was not appropriate, because of the special legal status attached to marriage.

However, 10 of the 17 judges agreed that in a comparison between unmarried different-sex couples and unmarried same-sex couples, the government should have the burden of showing that “the protection of the family in the traditional sense and, more specifically, the protection of the child’s interests, require the exclusion of same-sex couples from second-parent adoption, which is open to unmarried heterosexual couples.”   The court found that Austria failed to meet this burden.  “The Government did not adduce any specific argument, any scientific studies or any other item of evidence to show that a family with two parents of the same sex could in no circumstances adequately provide for a child’s needs.  On the contrary, they conceded that, in personal terms, same-sex couples could be as suitable or unsuitable as different-sex couples when it came to adopting children.”

The court found that Austria’s legislative scheme “appears to lack coherence.”  Since 2010 Austria has provided registered partnerships for same-sex couples.  The adoption law allows individual gay people to adopt, but neither the adoption law nor the registered partnership law allows same-sex couples to adopt jointly.  (Indeed, the partnership law expressly forbids such joint adoptions, but since it was enacted to go into effect in 2010, it does not apply to this case, which was filed in 2005.)  An individual gay person who is part of a registered couple may adopt, but is required to secure the consent of his or her same-sex partner! 

“The legislature therefore accepts that a child may grow up in a family based on a same-sex couple,” the court observed, “thus accepting that this is not detrimental to the child.  Nevertheless, Austrian law insists that a child should not have two mothers or two fathers.”   The court found that the evidence casts “considerable doubt on the proportionality of the absolute prohibition on second-parent adoption in same-sex couples.  Unless any other particularly convincing and weighty reasons militate in favour of such an absolute prohibition, the considerations adduced so far would seem rather to weigh in favor of allowing the courts to carry out an examination of each individual case.  This would also appear to be more in keeping with the best interests of the child, which is a key notion in the relevant international instruments.”

The court noted that the “margin of appreciation” for countries to take actions that appear to violate the equality principle in the Convention is narrow in cases of sexual orientation, which has been identified in past decisions as a disfavored ground for discrimination.  The European Court makes its decisions on such matters with reference to European trends.  Interestingly, most of the nations governed by the  Convention do not allow “second-parent” adoptions by unmarried couples, regardless whether they are same-sex or different-sex, but of those ten countries that do allow such adoptions, a slight majority at this point (6 out of 10) do allow second-parent adoptions by same-sex couples. In terms of discerning a trend, however, the court decided that “the narrowness of this sample is such that no conclusions can be drawn as to the existence of a possible consensus among Council of Europe member States.”

The court also briefly discussed the 2008 Convention on the Adoption of Children, which does not specifically authorize second-parent adoptions for same-sex couples but indicates that states who are bound by that Convention may allow such adoptions.  “This indicates,” said the court, that the Adoption Convention “does not mean that States are free to treat heterosexual and same-sex couples who live in a stable relationship differently.”  However, since Austria has not ratified that Convention, the court’s discussion of its provisions is not directly relevant to this decision.

“The Court is aware that striking a balance between the protection of the family in the traditional sense and the Convention rights of sexual minorities is in the nature of things a difficult and delicate exercise, which may require the State to reconcile conflicting views and interests perceived by the parties concerned as being in fundamental opposition.  However, having regard to the considerations set out above, the Court finds that the Government have failed to adduce particularly weighty and convincing reasons to show that excluding second-parent adoption in a same-sex couple, while allowing that possibility in an unmarried different-sex couple, was necessary for the protection of the family in the traditional sense or for the protection of the interests of the child.  The distinction is therefore incompatible with the Convention.”

The court took pains to note that it was NOT deciding that the Convention requires signatory countries to allow second-parent adoptions.  Because this is an equality holding and the Court has not yet found that same-sex couples have an equal right to marriage, member States may still maintain distinctions between married and unmarried couples, including in the area of adoption.  However, if a member State allows second-parent adoption for unmarried couples, it must treat them without distinction based on sexual orientation or the sex of the members of the couple.  Thus the decision is significant for rejecting Austria’s argument that assuring that a child not have two parents of the same sex is a legitimate basis for discriminating based on sexual orientation, and it clearly rejects the contention that same-sex couples are categorically less suitable to raise children than different-sex couples.

The Court made a small damage award to the applicants (EUR 10,000) for non-economic injuries, and awarded costs in the amount of EUR 28,420.88.  The applicants are represented by Dr. Helmut Graupner, a Vienna attorney who heads the leading gay legal advocacy group in Austria and who has argued frequently before the European Court.  The case attracted several amicus briefs.  Prof. Rob Wintemute of King’s College London filed a brief on behalf of six pro-gay non-governmental organizations, including ILGA-Europe, which were granted intervenor status by the court.  Amnesty International also filed a brief in support of the applicants. 

Opposing the applicants were the right-wing European Centre for Law and Justice, the Attorney General of Northern Ireland, and Alliance Defending Freedom (formerly known as the Alliance Defense Fund), a U.S. right-wing litigation group that routinely opposes gay rights at every available opportunity.  ADF’s amicus brief relied upon the usual discredited studies intended to support the claim that in light of “the inconclusive findings of the scientific research and the wide margin of aprpeciation States enjoy in the area of family law, it was justified in the interest of the child to reserve adoption, including second-parent adoption, to heterosexual couples.”  Research on this topic is only “inconclusive” if one credits such studies, which the court was not inclined to do, having found, as the Austrian government conceded, that same-sex couples could be suitable parents.