Especially interesting for Swedish readers, Cecilia Itzigehl of Lund University has made available the thesis "Rätten att bilda familj oavsett sexuell läggning – En analys av Europadomstolens praxis" (The right to form a family regardless of sexual orientation - an analysis of the European Court of Human Rights).
The thesis is a comprehensive analysis of the Court's approach to family life and sexual orientation.
Here is the summary:
LGBT rights are, and have for the last thirty years been, a current political
and legal issue in Europe. The purpose with this Thesis is to, based on the
ECtHR’s practice, discuss which family rights LGBT-persons’ have today
in Europe. Furthermore the paper will deal with what the current doctrine
has to say about this development of rights in the ECtHR’s practice. With
these issues as a cornerstone, this Thesis will explore the current legal
position of the ECtHR and doctrine, and also link the empirical material to
the theories about legal development contained within the current doctrine.
The Thesis describes the subject matter’s relevant articles within the ECHR
namely articles 8, 12 and 14 and also the principles that the ECtHR applies
when interpreting these provisions. Thereafter the empirical material is
presented in the form of judgments and decisions from the ECtHR and the
European Commission, and the current legal climate is clarified. Lastly the
current research situation and theories about the legal development is
The conclusions are as follows when describing the ECtHR’s decisions
concerning LGBT-rights: focus has been shifted from what is called “sex
rights” to “love rights” i.e. focus has gone from LGBT-persons’ rights to
express their sexuality and not to be discriminated against, towards their
rights’ to legal recognition and equal treatment of their relationships with
one another. Nonetheless, the answer to the question whether everyone is
entitled to start a family under the ECHR will still have to be answered in
the negative. It is however important to point that there are gradations
depending on what right is examined and depending on who or whom is
affected i.e. couples or singles, homosexuals or transsexuals.
The result of the case study clearly shows that recognition of LGBT-persons
rights is systematic, and that in the ECtHR it is easier for LGBT-persons to
claim private rights rather than public ones. The obstacles are mainly the
legislations heteronormative construction and its subsequent application.
The foremost reason that the sphere of LGBT-rights has been able to evolve
relatively swiftly during these last thirty years, is the ECtHR’s use of the
living instrument doctrine. Key factors for the continuing development of
LGBT-persons’ family rights would be a more moral interpretation of the
ECHR, an increased tolerance towards homosexuality, an increased
awareness of human rights, the dissolving of values that tie marriage to
gender and reproduction and finally an increased secularization in Europe.
This Thesis shows that there are still obstacles to overcome before everyone,
regardless of sexual orientation, has the right to start a family. However, the
ECtHR’s interpretations of the ECHR have in several cases led, and
continues to lead, to the extension of LGBT-persons’ rights in many
Cecilia's thesis can be found here: