[This article assesses the recent jurisprudence of the European judicial institutions in the area of lesbian, gay and transgender human rights. It considers four areas of rights protection: privacy, non-discrimination, family, and marriage. It concludes that, although the record of the European judicial institutions has been mixed, recent developments suggest a greater willingness to protect lesbians, gay men and transgender people from rights violations.]
Lesbian, gay and transgender human rights issues have only entered the international discourse on human rights in the last 20 years, even though lesbians, gay men and transgender people have suffered discrimination, persecution and injustice throughout the world since the beginning of the twentieth century. In the United Nations arena, there has been one quasi-judicial decision concerning the right to privacy for gay men: Toonen v Australia(1) before the UN Human Rights Committee (`HRC'). Although Mr Toonen and the Tasmanian Gay and Lesbian Rights Lobby succeeded in that case, in other areas the UN has not been particularly receptive to lesbian, gay and transgender issues.(2) Indeed, in some instances the UN has been hostile to such issues, as demonstrated by the suspension of the International Lesbian and Gay Association (`ILGA') from consultative status with the Economic and Social Council.(3) In Europe, however, lesbian, gay and transgender activists have fared better in having sexuality issues addressed by the various European institutions.(4) In particular, they have achieved a significant measure of success in rights claims brought under the European Convention for the Protection of Human Rights and Fundamental Freedoms (`ECHR').(5)
Unfortunately, not all sexuality rights claims before the European judicial institutions have succeeded. For lesbians and gay men, privacy claims have generally succeeded, whereas claims based on respect for family life and equality have historically not fared well. Transgender people have had even less success than lesbians and gay men. Importantly, however, in the past two years there have been a series of significant decisions that suggest that the European Court of Human Rights may take a more positive view of lesbian and gay claims -- and perhaps transgender claims -- under the ECHR.
This article focuses on cases decided in the past five years.(6) In order to understand these cases, it is important to situate them in the context of the previous jurisprudence of the European judicial institutions. I thus include a brief discussion of previous cases of the now defunct European Commission on Human Rights,(7) the European Court of Human Rights, and the European Court of Justice (`ECJ'). The analysis is divided into four parts. First, I examine the European jurisprudence on privacy. Second, I consider cases dealing with nondiscrimination. Third, I examine the cases concerning respect for family life. Finally, I look briefly at the cases concerning marriage. In each section I consider lesbian and gay claims separately from transgender claims, as somewhat different issues are often involved. In conclusion, I offer some thoughts as to where the European Court of Human Rights might be heading in terms of lesbian, gay and transgender human rights claims.
Article 8 of the ECHR provides:
1 Everyone has the right to respect for his private and family life, his
home and his correspondence.
2 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 or morals, or for the protection of
the rights and freedoms of others.
A Lesbians and Gay Men
The European Court of Human Rights' jurisprudence on privacy for lesbians and gay men has been positive for many years. …