Tuesday, 8 October 2013

New article in Swedish

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 described.


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 European countries. 


Cecilia's thesis can be found here:


http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=3348953&fileOId=3359694


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