Friday, 16 February 2018

Same-sex marriage in Northern Ireland - draft Bill

In the LGBT History Month talk I gave this month I discussed the draft Bill I wrote last year which, if enacted by the UK Parliament, would make same-sex marriage lawful in Northern Ireland.

The draft Bill is pretty simple, and I've copied the explanatory notes for it below. In essence, it would enable the UK Parliament to take back legislative authority for marriage in Northern Ireland and empower the Secretary of State to make same-sex marriage lawful there. 

I realise that such legislation may be considered contentious by some. But the UK Parliament could make same-sex marriage in Northern Ireland lawful, if the Government decided to introduce the necessary legislation. 

Perhaps some UK readers might like to write to their MP and request that they ask the Government to consider this Bill or a version of it? 

The draft Bill can be found here.

Explanatory notes for the draft Marriage (Same Sex Couples) (Northern Ireland) Bill

Clause 1 makes same-sex marriage lawful in Northern Ireland. The consequence of this is that, subject to any necessary changes to UK legislation permitted by Clause 2, existing same-sex marriages, solemnised in other jurisdictions (such as England and Wales), would be treated as lawful marriages.

Clause 2 requires the Secretary of State to make provision for the solemnisation of same-sex marriage in Northern Ireland, and allows the Secretary of State to make any additional changes to UK legislation that need to be made as a consequence of same-sex marriage being lawful. The Secretary of State would have 12 months, from the time the Act came into force, to make the necessary amendments to the Marriage (Northern Ireland) Order 2003 to enable the solemnisation of same-sex marriage.

Clause 3 “un-devolves” marriage and restores the power to legislate for marriage in Northern Ireland to the UK Parliament. This is achieved by adding marriage to the list of reserved matters in the Northern Ireland Act 1998. 

Thursday, 15 February 2018

LGBT History Month 2018 talk

I gave an LGBT History Month talk in York this year in a programme of events with the theme "geography: mapping the world". 

I used this theme as a basis for talking about how the historical and contemporary political geography of the UK has shaped and continues to sustain discrimination and inequality based on sexual orientation. 

By highlighting certain differences between the legal jurisdictions of the UK, both historically and in the present, I argued that we need a "one nation" approach to sexual orientation equality that delivers justice and fairness to everyone in the UK. 

The talk can be listened to here, and the slides are available here.

Monday, 12 February 2018

Charron and Merle-Montet v France - inadmissible

The Fifth Section of the European Court of Human Rights has declared Charron and Merle-Montet v France, which concerns discrimination on the grounds of sexual orientation in respect of medically assisted procreation, inadmissible on the basis that the applicants did not exhaust domestic remedies.

The applicants, a female same-sex couple, have been married since May 2014. Wishing to have a child together, they decided to turn to medically assisted procreation. In December 2014, they sent a request for treatment to the Centre for Reproductive Medical Assistance at the University Hospital Centre in Toulouse. The request was ultimately denied on the grounds that "the Bioethics Law currently in force in France does not allow the treatment of homosexual couples".

Relying on Article 8 alone and in conjunction with Article 14 of the Convention, the applicants complained to the Court that they had suffered a violation of their right to respect for their private and family life and discrimination in the exercise of this right based on sexual orientation. 

The Court decided that, because the applicants had not appealed to the administrative courts in France to challenge the decision of the Hospital, they had not exhausted domestic remedies, within the meaning of Article 35 § 1 of the Convention. On this basis, the Court unanimously declared the application inadmissible.

Monday, 5 February 2018

New academic article on same-sex marriage and ECHR

Masuma Shahid (Lecturer in the Department of International and European Union Law at Erasmus School of Law, Rotterdam) has published an article titled "The Right to Same-Sex Marriage: Assessing the European Court of Human Rights’ Consensus-Based Analysis in Recent Judgments Concerning Equal Marriage Rights".

Here is the abstract:

This contribution assesses the consensus-based analysis and reasoning of the European Court of Human Rights in recent judgments concerning equal marriage rights and compares it to the Court’s past jurisprudence on European consensus and the margin of appreciation awarded to Member States regarding the issue of equal marriage rights. The contribution aims to analyse whether there is a parallel to be seen between the rapid global trend of legalisation of same-sex marriage and the development or evolution of the case law of the ECtHR on the same topic. Furthermore, it demonstrates that the Court’s consensus-based analysis is problematic for several reasons and provides possible alternative approaches to the balancing of the Court between, on the one hand, protecting rights of minorities (in this case same-sex couples invoking equal marriage rights) under the European Convention on Human Rights and, on the other hand, maintaining its credibility, authority and legitimacy towards Member States that might disapprove of the evolving case law in the context of same-sex relationships. It also offers insights as to the future of European consensus in the context of equal marriage rights and ends with some concluding remarks.

The article is available here:

Thursday, 25 January 2018

Three recent admissibility decisions

The European Court of Human Rights has recently declared three complaints about sexual orientation discrimination inadmissible: 

M.B. v the Netherlands
The applicant complained, inter alia, under Article 3 of the Convention that his return to Guinea would mean he would run a real risk of ill-treatment due to his sexual orientation.

I.K. v Switzerland
The applicant complained that he will be subjected to inhuman or degrading treatment if he returns to Sierra Leone because of his sexual orientation, and would be exposed to discrimination on the grounds of his sexual orientation. He invoked Articles 3 and 14 of the Convention. 

Hallier and Others v France
The applicants complain of the rejection of an application for paternity leave, maintaining that the refusal was based on discrimination based on sex and sexual orientation in violation of Article 14 taken in conjunction with Article 8 of the Convention.

Friday, 5 January 2018

New ECHR "sexual orientation issues" factsheet

Happy New Year!

The European Court of Human Rights has issued an updated "sexual orientation issues" factsheet, which includes details of its recent judgment in Orlandi and Others v Italy

The factsheet is available here:

Sunday, 17 December 2017

2017 - the year in review

Here is my annual round-up of cases concerning sexual orientation discrimination that were considered by the European Court of Human Rights this year, along with some other comments and information. 

The Court's year in review 

In January, the Court declared the application in M.B. v Spain, which concerned a complaint by a lesbian asylum seeker resisting deportation to Cameroon, partly inadmissible and struck out the remainder. The Court also declared inadmissible the application in H.A. and H.A. v Norway in which one of the applicants sought to resist his deportation to Iran because, among other reasons, his father had alleged that he was homosexual. 

In February, the Court upheld complaints brought by a number of gay rights activists in Lashmankin and Others v Russia about refusals to allow them to hold a number of "gay pride" and other events. The Court also upheld the complaint in Rubio Dosamantes v Spain, finding that Spanish authorities had failed in their positive obligation to protect the applicant - a pop singer who is famous in Spain - from remarks made on television about her (homosexual) sexual orientation.

In March, the Court struck out Hörmann and Others v Austria which concerned discrimination in respect of the premises in which couples could marry or form a registered partnership. 

In June, the Court held in Bayev and Others v Russia that "homosexual propaganda" laws in the Russian Federation are in violation of the Convention.  

In October, the Court held in Ratzenböck and Seydl v Austria that denying a different-sex couple the opportunity to enter into a registered partnership (a legal institution exclusively reserved for same-sex couples) does not amount to a violation of the Convention. 

In December, the Court held in Orlandi and Others v Italy that Italy violated the Convention by refusing to give some legal recognition to same-sex couples married abroad. 
The best of the year

One of the Court's strongest endorsements of sexual orientation equality this year can be found in Bayev and Others v Russia in which the Court found that laws in the Russian Federation designed to suppress public discussion of homosexuality amount to a violation of the Convention. The Court stated that "by adopting such laws the authorities reinforce stigma and prejudice and encourage homophobia, which is incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society". Moreover, the Court considered such laws to perpetuate and reinforce ideas about "the inferiority of same-sex relationships compared with opposite-sex relationships" and, therefore, express "a predisposed bias on the part of the heterosexual majority against the homosexual minority". 

The worst of the year

The remarks made by Judge Pejchal and Judge Wojtyczek in their separate opinion in Orlandi and Others v Italy constitute, for me, the low point of the year in the Court's jurisprudence on sexual orientation discrimination. Judge Pejchal and Judge Wojtyczek's argument, for instance, that "the family unit is founded primarily by a man and a woman through marriage" appears to reflect a desire to return to a time when the "family life" protections guaranteed by Article 8 of the Convention excluded same-sex couples. Silvia Falcetta calls the remarks made by Judge Pejchal and Judge Wojtyczek on same-sex relationships "disturbing" and suggests some might see them as "completely ludicrous". 

In another case, Bayev and Others v RussiaJudge Dedov also made some remarks which some said were "outrageously homophobic" and "indefensible to the Western mentality".

As I argued here, the expression of "homophobic" ideas in the Court is not uncommon and Judges Dedov, Pejchal and Wojtyczek are merely the latest in a long list of Strasbourg judges and former commissioners who have publicly expressed their antipathy for same-sex relationships. I think we should thank them for "coming out" with their views, because they have provided those of us who aim to eliminate discrimination based on sexual orientation, by way of the European Convention on Human Rights, with a useful reminder: not all those in Strasbourg share our aspirations. 

Blog stats

In the time since I began this blog in February 2013, the stats page has recorded a total of 190,545 page views (which is 57,743 more since this time last year). Here is a list of the top ten countries by page views of all time: 

My work this year

This year I was pleased to make a podcast available from the "Going to Strasbourg" oral history project. 

I published the following academic articles: 

I published the chapter "Beliefs about the European Court of Human Rights in the UK Parliament" in the book Law in Popular Belief: Myth and Reality.

With Dr Silvia Falcetta I completed research on the utility of Article 3 of the Convention for addressing discrimination on the grounds of sexual orientation that will be published in European Law Review soon.

Shorter pieces of writing include an article in the Huffington Post on the so-called "Turing Pardons", an article on the European Courts website regarding whether the Strasbourg Court will solve the conundrum of same-sex marriage in Northern Ireland, and the text of a "Pint of Science" talk on gay rights as human rights. 

Thanks very much and Happy New Year

I want to thank everyone who has read this blog over the year for their interest. Many thanks indeed to those of you who have written to me personally - it is always great to hear from you.

I wish you all a very happy, a very peaceful, and a very prosperous 2018.