Homosexuality

 

 

The Court's Press Service has compiled Factsheets by theme on the Court’s case-law and pending cases.

 

These factsheets are available on the Court's website (www.echr.coe.int/ECHR/EN/Header/Press/Information+sheets/Factsheets)

 

We summarized some of them for our readers and recommend to visit the Court's website on these topics.

 

 

• Adoption

 

Refusal of a request by a single woman in a stable relationship with another woman for prior authorisation to adopt a child.

 

The European Court of Human Rights observed that the applicant’s homosexuality had been a determining factor in refusing her request, whereas French law allowed single persons to adopt a child, thereby opening up the possibility of adoption by a single homosexual.

 

Thus she suffered violation of Article 14 of the Convention, taken in conjunction with Article 8.

 

E.C.H.R., 22.01.2008, E.B. v. France (n° 43546/02)

 

• Parental rights

 

 

1. Joint custody withdrawn from a father on account of his homosexuality.
The Portuguese courts’ decision had been largely based on the fact that the applicant was a homosexual and that “the child should live in a traditional Portuguese family”.

 

The European Court of Human Rights held that that distinction, based on considerations relating to sexual orientation, was not acceptable under the Convention, thus found a violation of Article 14 taken in conjunction with Article 8.

 

E.C.H.R.,21.12.1999, Salgueiro da Silva Mouta v. Portugal (n°33290/96)

 

 

2. Following her divorce, the applicant's former husband became the parent with care of their children and she was required to contribute financially to the cost of their upbringing. In 1998, she started living with another woman in an intimate relationship.

 

The regulations that applied at that time - prior to the introduction of the Civil Partnership Act - provided for reduced child maintenance where the absent parent had entered into a new relationship, married or unmarried, but took no account of same-sex relationships.

 

The European Court of Human Rights held that the rules on child maintenance had discriminated against those in same-sex relationships thus found a violation of Article 14 in conjunction with Article 1 of Protocol N°1.

 

E.C.H.R., 28.09.2010, J.M. v. the United Kingdom (n° 37060/06)

 

 

• Employment

 

The applicants were discharged from the armed forces solely on account of their homosexuality, following investigations into their sexual orientation.

 

The European Court of Human Rights held that the measures taken against the applicants had constituted especially grave interferences with their private lives and had not been justified by “convincing and weighty reasons” and thus found violations of Article 8 and, in certain cases, violation of Article 13.

 

E.C.H.R., 27.09.1999, Lustig-Prean and Beckett v. the United Kingdom (nos. 31417/96 and 32377/96) and Smith and Grady v. the United Kingdom (nos. 33985/96 and 33986/96)

E.C.H.R., 22.10.2002, Perkins and R. v. the United Kingdom (nos. 43208/98 and 44875/98) and Beck, Copp and Bazeley v. the United Kingdom (nos. 48535/99, 48536/99 and 48537/99)

 

 

• Social rights

 

Refusal to extend sickness insurance cover to the homosexual partner of an insured person.

 

Before a legislative amendment in July 2007, Austrian law provided that only a close relative of the insured person or a cohabitee of the opposite sex qualified as dependants.

 

The European Court of Human Rights held that there had been a violation of Article 14 in conjunction with Article 8.

 

E.C.H.R., 22.07.2010, P.B. and J.S. v. Austria (n° 18984/02)

 

 

 

 

• Right to a lease

 

Refusal to allow a homosexual to succeed to a tenancy following the death of his partner.

 

The Court could not accept that a blanket exclusion of persons living in a homosexual relationship from succession to a tenancy was necessary for the protection of the family, thus it found a violation of Article 14 taken in conjunction with Article 8.

 

E.C.H.R., 24.07.2003, Karner v. Austria (n°40016/98)
E.C.H.R., 02.03.2010, Kozak v. Poland (n°13102/02)

 

 

• Right to demonstrate

 

The applicants campaign for homosexual rights. In 2005 the local authorities refused permission for them to organise a march in the streets of Warsaw to raise public awareness of discrimination against minorities, women and people with disabilities. The march was eventually held anyway.

 

The Court observed that while it was true that the march had eventually been held, the applicants had taken a risk since it had not been officially authorised at the time.

 

It could reasonably be surmised that the real reason for the refusal had been the local authorities’ opposition to homosexuality : violation of Articles 11, 13 and 14.

 

E.C.H.R., 03.05.2007, Bączkowski and Others v. Poland (n°1543/06)

 

 

 

• Criminalisation of homosexual relations in general

 

1. The legislation then in force in Northern Ireland classified homosexual relations between males as a criminal offence. The applicant complained that he experienced feelings of fear, suffering and psychological distress as a result of the very existence of the laws at issue, including fear of harassment and blackmail. He also complained that he had been subjected to an investigation into certain homosexual activities.

 

The Court found that the restriction imposed on Mr Dudgeon, by reason of its breadth and absolute character, was, quite apart from the severity of the possible penalties, disproportionate to the aims sought to be achieved, namely the protection "of the rights and freedoms of others" and “of morals” : violation of Article 8 of the European Convention on Human Rights.

 

E.C.H.R., 22.10.1981, Dudgeon v. the United Kingdom (n°7525/76)

 

2. The applicant argued that his prosecution and conviction for participating, in private and in his own home, in sexual acts with more than one consenting adult of the male sex, constituted interference with his private life.

 

In the Court’s view, the acts in question were purely private in nature and so the respondent State’s margin of appreciation was narrow.

 

There was no “pressing social need” to justify the legislation in question or its application in the proceedings against the applicant : violation of Article 8.

 

E.C.H.R., 31.07.2000, A.D.T. v. the United Kingdom (n°35765/97)

 

 

• Criminalisation of homosexual relations between an adult and an adolescent

 

The applicants were convicted for having homosexual intercourse with young males of 14 to 18.

 

Austrian legislation classified as a criminal offence homosexual acts of adult men with young males between 14 and 18, but not with young females in the same age bracket.

 

The Court found no sufficient justification for the difference in treatment complained of : violation of Article 14 in conjunction with Article 8.

 

E.C.H.R., 09.01.2003, L. and V. v. Austria (nos. 39392/98 and 39829/98) and S.L. v. Austria (no. 45330/99)