LGBT Rights as Mega-politics: Litigating before the ECtHR

31 Pages Posted: 22 Jun 2021 Last revised: 19 Aug 2021

See all articles by Laurence R. Helfer

Laurence R. Helfer

Duke University School of Law; University of Copenhagen - iCourts - Centre of Excellence for International Courts

Clare Ryan

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center

Date Written: August 16, 2021

Abstract

Contestations over LGBT rights are now occurring worldwide at multiple levels of governance. The European Court of Human Rights (ECtHR or Strasbourg Court) has become a focal point for these contestations. This article, part of a symposium in Law and Contemporary Problems on International Courts and the Adjudication of Mega-Politics, analyzes the increase in LGBT rights cases before the ECtHR. We argue that two divergent forces are pushing these cases to Strasbourg. First, the Court has dynamically interpreted the European Convention on Human Rights to expand protections for gay men and lesbians by taking account of progressive trends in national laws and policies. Second, the ECtHR has received numerous complaints against Russia, Eastern European, and former Soviet states that routinely violate the bodily integrity and political rights of sexual minorities.

To understand these trends, we coded all ECtHR lesbian and gay rights cases. We divide the case law into three periods—1950 to 1998, 1999 to 2009, and 2010 to 2020—that mark the Court’s evolving approach to these rights. We identify the number of cases in each period, describe important doctrinal trends, and discuss watershed cases that mark shifts in ECtHR jurisprudence. We then pose three questions to investigate the explosion of LGBT legal issues before the ECtHR over the last decade: Why the increase? Why Strasbourg? And why LGBT rights? We conclude by considering the implications of our findings for the ECtHR as a forum for mega-political contestation.

Keywords: European Court of Human Rights, human rights, LGBT rights, Council of Europe, mega-politcs, international courts

Suggested Citation

Helfer, Laurence R. and Ryan, Clare, LGBT Rights as Mega-politics: Litigating before the ECtHR (August 16, 2021). Law and Contemporary Problems, Vol. 84, No. 3, 2021, Duke Law School Public Law & Legal Theory Series No. 2021-32, Available at SSRN: https://ssrn.com/abstract=3867604 or http://dx.doi.org/10.2139/ssrn.3867604

Laurence R. Helfer (Contact Author)

Duke University School of Law ( email )

210 Science Dr.
Box 90360
Durham, NC 27708
United States
+1-919-613-8573 (Phone)

HOME PAGE: http://law.duke.edu/fac/helfer/

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

University of Copenhagen Faculty of Law
Karen Blixens Plads 16
Copenhagen S, DK-2300
Denmark

HOME PAGE: http://jura.ku.dk/icourts/

Clare Ryan

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center ( email )

440 Law Center Building
Baton Rouge, LA 70803
United States

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