Effectiveness of Article 14 ECHR in the Protection of Sexual Minorities
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Hi! I’m Raphael Chinwuko, a 23-year-old recent Durham Law graduate. I’m from Nigeria, and have lived in Lagos (where I was born and raised), Cambridge and Durham, UK. I currently live and work in Amsterdam, Netherlands. During my study of the law, I developed an interest in human rights and the framework of the ECHR. Article 14 ECHR fascinated me because of its symbiotic nature (one must always ground an Article 14 claim in another substantive ECHR Article); this puts it at a risk of being undervalued, or worse ignored, consequently denying protection to those in dire need of it. I sought to critically dissect Strasbourg’s jurisprudence on sexual orientation discrimination, interrogating Article 14’s effectiveness in protecting sexual minorities from such discrimination. I studied the Family Law course (which I really enjoyed!) in my final year at Durham, where one of the major topics was Marriage (including same-sex marriage, civil partnerships, and cohabitation). This drew my attention to Article 14's role in protecting from discrimination individuals who do not conform to society's heteronormative idea of marriage and any such unions. I expanded the scope of my analysis beyond marriage, to include instances such as adoption, employment, pensions, to mention a few. During writing and while reviewing the relevant Strasbourg’s case-law, I was struck by how people's lives were profoundly impacted (usually negatively) by court decisions made with underlying heteronormativity, and in some instances, arguably, homophobic proclivities. I got a robust appreciation of the positive turn which Strasbourg has adopted in interpreting Article 14 with the aim of shunning sexual orientation discrimination, albeit with a tad hesitation in extending this to the institution of marriage—refusing to recognise a right to same-sex marriage. Given the significant progress that has been made with regards to this topic (as discussed in the dissertation), one can be optimistic that Strasbourg will soon break free of the pernicious confines of heteronormativity, eventually recognizing a right to same-sex marriage, and the prevention of such, as blatant discrimination.
-Raphael Chinwuko, Author
Introduction
Over the years, various human rights endeavours have resulted in the palpable diminishing of hostility and bigotry towards sexual minorities in Europe. This is the case for majority of state parties to the Council of Europe (CoE), an international organisation that aims, inter alia, to uphold human rights and protect sexual minorities in Europe.1This, however, has not always been the case.
This dissertation aims to assess the effectiveness of the interpretation and application of Article 142 of the European Convention on Human Rights (ECHR)3 (in conjunction with other Convention Articles) in the protection of sexual minorities from discrimination. Overall, it will argue that Article 14, in the protection of sexual minorities from discrimination, was largely ineffective in the past, has significantly improved as it currently stands, but still has some way to go in the area of same-sex marriage.
Chapter one will argue that Article 14 was largely ineffective in the protection of sexualminorities from discrimination due to its ‘second-class’ status; the narrow interpretationof ‘discrimination’ which excluded ‘indirect discrimination’; and the capriciously lenientscrutiny applied by Strasbourg when assessing cases of sexual orientation discrimination. It will then suggest that this ineffectiveness still partly stands today. Chapter two will conduct case analyses, primarily on Fretté v France4 and Schalk and Kopf v Austria,5 to demonstrate the said ineffectiveness of Article 14. Fretté will showStrasbourg’s leniency in assessing sexual orientation discrimination cases while Schalk will demonstrate how this leniency poses a problem to date, especially with regards to same-sex marriage rights. It will note the general temporal disparity in this effectivenessbecause Strasbourg’s interpretation and application of Article 14, as a result of the evolutive interpretation of the Convention, has significantly improved from being largely ineffective in the past, to now more effectively protecting sexual minorities from discrimination.
Chapter three will argue that there has been a significant improvement in the interpretation and application of Article 14, such that it has, to a substantial extent, become more effective in the protection of sexual minorities from discrimination. This change will be attributed inter alia to the ‘living instrument’ doctrine which ensures thatArticle 14 is interpreted in light of the contemporary standards of greater tolerance towards sexual minorities, so that sexual orientation discrimination cases are strictly scrutinised.
Chapter four will then assert that there is still some way to go in order to fill the gaps thatstill exist in Article 14’s protection of sexual minorities from discrimination, especiallywith regards to the discrimination that presently occurs vis-à-vis same-sex marriage. It will suggest that applying Article 14 in conjunction with Article 12, with particularly strict scrutiny when assessing the reasons advanced for prohibiting same-sex marriage, would enhance the possibility of further improving the respective effectiveness of Article 14 by rectifying the discrimination that sexual minorities face vis-à-vis the right to marry.
It will conclude by reiterating the need for Strasbourg to take a more proactive stance in recognising same-sex marriage rights thereby ending the discrimination that sexual minorities still face in that regard. It will, however, be recognised that such an approachmight not be as effective or welcome in some of the CoE’s Central and Eastern Europeanstates.
