Wednesday, 27 September 2017

Same-sex marriage and Article 3 ECHR: a new approach to addressing marriage discrimination

Paul Johnson and Silvia Falcetta

During recent months, we have been carrying out research on the utility of Article 3 of the European Convention on Human Rights for addressing discrimination on the grounds of sexual orientation.

Article 3 of the Convention provides the absolute guarantee that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Given the scope of this guarantee, one might expect that Article 3 would have been a key provision for addressing the wide spectrum of ill-treatment to which individuals have been subjected because of their sexual orientation. However, since the Convention entered into force in 1953, Article 3 has rarely been utilized to address sexual orientation discrimination, and it was not until 2012 that a complaint brought under Article 3 about sexual orientation discrimination succeeded in the European Court of Human Rights.

In an article to be published in European Law Review, we provide a critical analysis of the history and evolution of the Court’s Article 3 jurisprudence in order to assess the ways in which this has developed the protection of sexual minorities in Europe. We identify major gaps in this protection, most notably in respect of asylum, and argue that the Court’s Article 3 jurisprudence should be further evolved to address these.

A key focus of our research is on how sexual minorities might better and more creatively use Article 3 of the Convention in the future to address discrimination against them. One area of discrimination we focus on specifically is in respect of marriage.

Article 3 and same-sex marriage

Article 3 of the Convention has never been invoked in a complaint to the European Court of Human Rights about the lack of access to or legal recognition of same-sex marriage. This is not wholly surprising because the Convention contains a substantive provision on marriage, enshrined in Article 12, which has been the principal focus of same-sex marriage cases both in the Court and in domestic courts in Council of Europe states. However, the key problem for those seeking marriage equality under Article 12 of the Convention is that the Court has held that this provision is founded on the concept of a “union between partners of different sex” (Schalk and Kopf v Austria, para 55) and has consistently held that it “does not impose an obligation on [a] Government to grant a same-sex couple […] access to marriage” (Oliari and Others v Italy, para 192). As a consequence, the Court maintains the inflexible view that same-sex couples have no recourse under Article 12 to being excluded from the rights and benefits attached to marriage.

The question that arises, therefore, is how it might be possible for same-sex couples to break down the “heteronormative firewall” that the Court has built around marriage. We argue that Article 3 provides such a possibility. It does so, we suggest, because Article 3 offers the opportunity to address and eradicate marriage discrimination from the standpoint of “human dignity”, respect for which is the “very essence of the Convention” (Bouyid v Belgium [GC], para 89) and “one of the most fundamental values of democratic society” (Z. and Others v the United Kingdom [GC], para 73).

The close connection between the right to marry and respect for human dignity has been thoroughly explored by courts as well as by scholars. For example, the Supreme Court of the United States of America recognized that “the transcendent importance of marriage” is the “nobility and dignity” it offers to couples, and that same-sex couples seeking access to marriage are asking “for equal dignity in the eyes of the law” (Obergefell v Hodges, 576 U.S._ (2015) 3 and 28). We think that when same-sex couples go to the European Court of Human Rights with complaints about marriage discrimination they are highlighting forms of subjective distress and injurious effects that strike at the very core of their human dignity.

Our proposition is that the damage to human dignity created by exclusion from marriage can be argued to amount to degrading treatment within the meaning of Article 3 of the Convention. Through a comprehensive assessment of the Court’s jurisprudence, we consider it reasonable and persuasive to argue that being denied access to marriage, on the basis of sexual orientation, causes forms of personal suffering and humiliation that reach the threshold set by the Court to be deemed degrading treatment under Article 3. This is because there are an extensive number of ways in which, as a result of being excluded from marriage, same-sex couples suffer humiliation and debasement in their own eyes and the eyes of others, are driven to act against their will or conscience, are treated with a lack of respect, and are diminished in the societies in which they live – forms of suffering which, in other contexts, have been held by the Court to be degrading within the terms of Article 3 (M.C. and A.C. v Romania, para 108).

We recognize that some may argue against our claim that denying same-sex couples access to marry amounts to degrading treatment contrary to Article 3 of the Convention. We seek to address, in our article, some of the legal and other arguments that might be put forward against our proposition. However, when we consider the types of treatment that the Court has considered as “degrading” in the past – for example, depriving a person in prison of his reading glasses (Slyusarev v Russia, paras 43-44) – we argue that there is scope to extend this provision to recognize the exclusion from marriage as a form of ill-treatment that is prohibited by the Convention.

The great value of seeking to address the issue of same-sex marriage under Article 3 is that it escapes the confines of Article 12 and, in doing so, avoids historical questions concerning whether the wording of the right to marry refers only to unions between men and women. This may be useful in the domestic courts, as well as the European Court of Human Rights.

For example, in cases concerning marriage discrimination in Northern Ireland, although it was recognized that the exclusion of same-sex couples from marriage created “psychiatric damage caused by isolation, insult and disapproval”, the High Court was “driven to conclude that the Convention rights of the applicants have not been violated” because “the Strasbourg Court does not recognise a ‘right’ to same sex marriage” (Close et al [2017] NIQB 79). The High Court reached this conclusion principally by considering the issue under Article 12 of the Convention and following the jurisprudence of the European Court of Human Rights on that Article. Our view is that a more fruitful way of addressing the “psychiatric damage caused by isolation, insult and disapproval” caused by excluding same-sex couples from marriage is to recognize that such “damage” is the result of a form of degrading treatment that is prohibited by the Convention under Article 3.

Reading our research

Our research will be published in European Law Review in mid 2018. However, any academic or practitioner who would like a pre-print copy of the article can request one from

Friday, 8 September 2017

18 year anniversary of "gays in the military" ECHR judgments

Young people joining the UK armed forces today may know little or nothing of the time when being gay in the British Army, Royal Air Force, or Royal Navy and Marines could have led to a term of imprisonment and/or discharge. 

Today, thankfully, gay men and lesbians are welcome to serve in the UK armed forces and enjoy protection from discrimination on the grounds of sexual orientation. The Army's commitment to Pride this year is just one example of the transformation in attitudes towards inclusiveness in the armed forces in respect of sexual orientation. 

The acceptance of lesbians and gay men in the UK armed forces is largely the result of ground-breaking judgments handed down by the European Court of Human Rights 18 years ago this month. 

The judgments in Lustig-Prean and Beckett v the United Kingdom and Smith and Grady v the United Kingdom responded to complaints by four gay applicants - John Beckett, Graeme Grady, Duncan Lustig-Prean, and Jeanette Smith - about their treatment by the armed forces after they had been reported to and investigated by ‘service police’ in relation to their sexual orientation. All four endured extensive and intrusive investigations and were subsequently administratively discharged (sacked) because of their sexual orientation.

Prior history

These cases were not the first time that gay service personnel had gone to Strasbourg with a complaint about sexual orientation discrimination. 

The first person to take such a complaint was the applicant in B. v the United Kingdom, a male non-commissioned officer who had served in the British Army for eight years. He complained about his conviction for consensual homosexual acts committed in private on separate occasions with a gunner in his regiment and a civilian. The applicant, who had an exemplary military record, was convicted of ‘disgraceful conduct of a cruel, indecent or unnatural kind’ and was sentenced to a reduction in rank and to nine months’ imprisonment with corrective military training, followed by dishonourable discharge. 

The former European Commission of Human Rights responded to this complaint in 1983 by dismissing it on the basis that the ‘court-marital and dismissal from the service can be considered “necessary in a democratic society” for the “protection of morals” and also “for the prevention of disorder” in the context of military service’.

In 1991, the House of Commons Select Committee responsible for scrutinising the quinquennial Armed Forces Bill recommended that ‘homosexual activity of a kind that is legal in civilian law should not constitute an offence under Service law’. In reaching that conclusion, the Committee took evidence from, among others, a founding member of Stonewall, Michael Cashman (now Lord Cashman), and co-founder of Rank Outsiders, Robert Ely. As a consequence of the Select Committee’s recommendation, male homosexual acts were partially ‘decriminalized’ in the armed forces in 1994.

However, regardless of the legislative change in 1994, gay men and lesbians could still be discharged from the armed forces for the mere fact of being gay. This was happening at an astounding rate: by my estimation, between the mid 1980s and 1990s, six service personnel were on average discharged from the armed forces per month for the sole reason that they were gay.

The ECtHR 1999 judgments

When John Beckett, Graeme Grady, Duncan Lustig-Prean, and Jeanette Smith went to Strasbourg they did so with the ambition of challenging the legality of their discharge from the armed forces and their treatment during the course of this discharge. 

The judgments in Smith and Grady and Lustig-Prean and Beckett marked a sea change in the Court’s conceptualization of homosexuality. They demonstrated a significant absence of the view, once hegemonic in the former Commission, that homosexual men and homosexual sexual practices represented a social danger that justified their containment and suppression.

The Court stated that it regarded the interference with the applicants’ right to respect for their private lives as ‘especially grave’ for a number of reasons. First, the investigation process ‘was of an exceptionally intrusive character’, carried out according to methods based on criminal procedures, and sometimes involving a range of individuals associated with the applicants. For example, Ms Smith’s partner, Margaret Fleming, who was not a member of the armed forces, was interviewed and asked, inter alia, ‘what sexual acts she and her partner performed and whether she and her partner had had sex with their foster daughter’. Secondly, the discharge of the applicants had a ‘profound effect on their careers and prospects’. Thirdly, the policy under which the applicants were discharged was of an ‘absolute and general character’, which operated ‘irrespective of the individual’s conduct or service record’.

As a result of the Court upholding the applicants' complaints in September 1999, the UK government announced in January 2000 that ‘homosexuality will no longer be a bar to service in Britain’s armed forces’. Subsequent to this, the Court upheld complaints lodged by several other gay and lesbian service personnel who had been administratively discharged because of their sexual orientation. These included judgments in Perkins and R. v the United Kingdom and Beck, Copp and Bazeley v the United Kingdom.

Legislative developments since 1999

Recent legislative developments show just how far the UK Parliament has come in respect of gay men and lesbians serving in the armed forces.

In 2016, Parliament took the step of repealing the final piece of anti-gay law relating to the armed forces. I described that process at the time in the Huffington Post; a process in which Duncan Lustig-Prean, of Lustig-Prean and Beckett v the United Kingdom, played an instrumental role.

This year, as part of the legislation that granted posthumous pardons to those persons previously convicted or cautioned for now-repealed (homo)sexual offences, Parliament extended pardons to those convicted of specific service offences. As a result of interventions made by Lord Lexden, these pardons extend back as far as 1661 (the year that 'An Act for the regulation and better government of the navy' stated that if 'any person or persons in or belonging to the Fleet, shall commit the unnatural and detestable Sin of Buggery or Sodomy' they 'shall be punished with death, without mercy').

Remembering brave people

The late, great James Baldwin said: "History is not the past. It is the present. We carry our history with us. We are our history. If we pretend otherwise, we literally are criminals."

As part of ensuring that this recent history of change in the armed forces remains with us, my small contribution has been to assemble oral histories by some of those who went to Strasbourg with complaints about discrimination.

In the book "Going to Strasbourg", Duncan Lustig-Prean, Graeme Grady, Terence Perkins, Emma Riley, and Kevin Bazeley talk extensively about their experiences of taking their complaints to the Strasbourg Court. And some of these brave people also talk about their experiences in this podcast.

18 years after the judgments in 
Smith and Grady and Lustig-Prean and Beckett, we can reflect on and give thanks for the tremendous sacrifices and brave deeds of those people who actively changed the legal landscape of the UK and made it possible for gay men and lesbians to serve in the UK armed forces without the fear of institutional persecution.