Human Rights and Parental Rights in the ECHR

[Editor's Note: Very recently, Britain and Wales legalized same-sex marriage, allowing for couples to legally wed. In this special Her Blueprint blog post, Carrie James, a law student at George Washington University in Washington, DC looks at the way forward for LBG rights across Europe, specifically within the European Court of Human Rights.

Bio: Carrie R. James is a law student at The George Washington University Law School in Washington, DC, where she studies international law and international human rights law. She holds a master of arts degree in international affairs with a concentration in governance and rights from The New School University in New York City and bachelor's of fine arts in theatre from Long Island University. She specializes and is an activist in women's and queer people's rights. She spends her rare free time writing fiction with a very snuggly cat on her lap.]

While the European Court of Human Rights (ECHR) has ensured the protection of rights for lesbian, gay, and bisexual (“LGB”) people, their interpretation of laws to protect LGBs has lead to gaps, particularly in the area of parental rights.

Overview of the ECHR 
The European Convention on Human Rights (the Convention) ensures protection of individual human rights as law, which are reviewed and decided by the ECHR. The Court provides individual relief as well as “determines issues on public-policy grounds in the common interest” in order to increase protection of human rights in Europe. Therefore, the Court's interpretation of a law has powerful human rights outcomes.

When the Court reviews laws pertaining to LGB people, Articles 8 and 14 are typically the provisions used. Article 8 protects an individual’s private and family life, allowing interference only to the extent required to secure “national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 prohibits discrimination according to the Convention. This means the Court considers different treatment of LGB persons to be discriminatory. Overall, sexual orientation discrimination requires a serious justification for any different treatment.

Previous Cases Involving LGB Parental Rights
The Court has considered several overarching LGB issues: criminalization of sodomy, housing discrimination, and parental rights via custody and adoption. At this time, the Convention does not guarantee a right for LGB people to adopt. In result, adoption issues involving LGB people have often arisen before the Court.

In Frette v. France, the Court determined that a denial of adoption to a single, gay man was not a violation of the Convention. The lack of scientific research coupled with the lack of international consensus regarding adoption by lesbians, gays, and bisexuals supported its conclusion. However, in E.B. and others v. France, the Court reversed Frette, finding that too much emphasis was placed on sexual orientation in denying the adoption, specifically the amount of focus given to the role her partner would play in the child’s life. The Court focused narrowly on the facts of this case rather than, as in Frette, broader public policy issues of allowing lesbians, gays, and bisexuals to adopt.

In Gas and Dubois, only married couples were allowed to access reproductive technologies in France. Because at the time same-sex couples were excluded from marriage, a lesbian couple went to Belgium in order for one partner to be inseminated. After the birth of their daughter, the couple sought a second parent adoption, which was denied because only married couples were permitted to adopt. The Court upheld the denial, because no unmarried couples (same or different sex) could access adoption. Therefore, the rights of the couple were not violated according to the Court's interpretation.

However, in X and others v. Austria,  a woman sought a second parent adoption of her partner’s child from a previous relationship, the denial was found to be a violation. Unmarried, different-sex couples in Austria were permitted second parent adoptions.

ECHR’s Straight Gaze on Relational Rights 
The ECHR’s approach to LGB issues is more likely to protect individual rights (private sex and succession) rights, rather than relational rights (parenting). In the cases I've discussed regarding adoption, the Court approaches the issue by engaging with the difference between heterosexuals and homosexuals or bisexuals. In more recent cases, the Court found a similarity between the groups first and analyzed the different treatment through a heterosexual lens (or the “straight gaze”). As can be seen in the French and Austrian second-parent adoption cases, the ability for LGB parents to secure legal protections of their families is entirely dependent on whether the State provides non-married, different-sex couples legal protections for their families.

By tagging parental rights to how heterosexuals access these rights, the Court fails to protect LGB rights to family. The simplest solution to these issues seems the requirement of same-sex marriage. However, the problem of approaching these rights from a heterosexual point of view would not be addressed, even if same-sex marriage was universally legal throughout Europe. Because the legal infrastructure is biased to the heterosexual, the ECHR should adjust what legally determines impermissible discrimination. Rather than looking narrowly at what the law provides for heterosexuals, the Court should look both narrowly and then more broadly at the legal infrastructure in which the discriminated party operates (in this case, the LGB person within Member States).

The Court should adjust its legal approach toward the discrimination of LGB rights, and focus on the difference between these groups and heterosexuals, rather than shoe-horning these rights into a heterosexual mold. This approach will help the Court to holistically take on issues of discrimination. It will also consider the broader infrastructure that affects LGB people and denies their rights under the Convention.

 The result? Hopefully, better protection of human rights for everyone no matter their sexual orientation.