Contesting Sexual Orientation Rights Before the ECtHR
International Sexual and Reproductive Rights Lawfare (Siri Gloppen & Malcolm Langford eds., 2023)
Duke Law School Public Law & Legal Theory Series No. 2023-09
39 Pages Posted: 11 Jan 2023 Last revised: 31 Jan 2023
Date Written: January 28, 2023
This chapter, a contribution to an edited volume on International Sexual and Reproductive Rights Lawfare, analyzes the evolution of lesbian and gay rights litigation before the European Court of Human Rights (ECtHR). Between 2010 and 2020, the ECtHR issued fifty-seven merits judgments involving a broad array of sexual orientation issues—a sharp expansion from the number of such decisions in earlier periods. The growing number of cases reflects the fact that sexual orientation rights have become increasingly contested across Europe. This was recently underscored by Fedotova v. Russia, a January 2023 judgment in which the ECtHR Grand Chamber held that the Council of Europe’s member states are required to provide same‑sex couples with adequate legal recognition of their relationships. We explore the reasons for the growing number of sexual orientation cases before the ECtHR and predict that future litigation concerning same-sex marriage and asylum are poised to further exacerbate these contestations.
In addition, the chapter offers insights into the research questions identified in the Introduction to the edited volume. We emphasize the strategic decisions of actors who turn to the ECtHR as a sympathetic venue for expanding lesbian and gay rights across Europe and, separately, to provide a bulwark against repression by some states. We identify the political and social factors that push these cases to the Court and the doctrines it applies when adjudicating these disputes. We then discuss the nation-level protections that ECtHR litigation has historically engendered and how recent cases have increased the risk of noncompliance with ECtHR judgments concerning sexual orientation rights. Finally, we investigate whether the Court can maintain its legitimacy and avoid politicizing sexual orientation rights cases notwithstanding the growing controversy over those rights across Europe.
Keywords: sexual orienation, human rights, ECtHR, Strasbourg Court, lesbian and gay rights, LGBT rights, Council of Europe, Fedotova v. Russia
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