A New Protocol for Equality: A New Vehicle Toward Gay Rights as Human Rights?

Abstract

In this study, I explore what type of implications Protocol 12 of the ECHR could have for the ECtHR's approach to gay rights. I start by investigating the Court's current approach to the protection of these rights, addressing instances when the Court has found certain treatment of gays as contrary to the Convention, the level of scrutiny the Court employed in cases dealing with gay rights, and the Court's case law on same-sex marriage. It is apparent from the case law that the Court's interpretation of gay rights is highly dynamic. The Convention is after all a "living document" and must thus be interpreted in its broader, societal context. I address this type of interpretation by looking to recent developments within Europe, developments both in the political bodies of the Council of Europe and the European Union, as well as developments within the European Court of Justice. Finally, I consider how a decision recognizing a right to same-sex marriage might gain local acceptance. My conclusion will highlight the necessity of taking into account the local culture for the effective implementation of such a decision, as opposed to the necessity of taking them into account in the making of the decision itself. Based on Zou & Zwart's receptor approach and Gramscian notions of counter-hegemony, I will set out the beginnings of a research agenda for a theory of using cultural knowledge to effectuate human rights.

Keywords: European Court Of Human Rights, Same-Sex Marriage, Gay Rights, Protocol 12, The Receptor Approach, Gramsci, Non-Discrimination