Friday, 27 October 2017

Excluding different-sex couples from registered partnerships does not violate the ECHR: Ratzenböck and Seydl v Austria

The Fifth Section of the European Court of Human Rights has issued its judgment in the case of Ratzenböck and Seydl v Austria, holding by a majority that denying a different-sex couple the opportunity to enter into a registered partnership (a legal institution in Austria exclusively reserved for same-sex couples) does not amount to discrimination on the grounds of sexual orientation in violation of Article 14 taken in conjunction with Article 8 of the European Convention on Human Rights.

Context

The context for this case is the legal situation pertaining to the recognition of couple relationships in Austria.

Different-sex couples in Austria are able to marry, whereas same-sex couples are not. Since 2010, same-sex couples have been able to enter into a registered partnership. This legal institution was introduced in order to provide same-sex couples with a formal mechanism for recognising and giving legal effect to their relationships, without giving them access to marriage.

The applicants in this case, a different-sex couple, complained that excluding them from registered partnerships amounted to discrimination based on their sex and sexual orientation. They claimed that “marriage was not a suitable alternative for them”.

The Court’s judgment

Unfortunately for the applicants, although the Court unanimously declared their application admissible it did not progress very far on the merits. This is because, pursuing its standard mode of analysis under Article 14 of the Convention, a majority of the Court concluded that the complaint did not satisfy the first “test”: that is, whether the applicants were in a relevantly similar situation to others treated differently.

The majority, in comparing the applicants with same-sex couples, concluded that they were not in a relevantly similar or comparable situation. The majority reached this conclusion principally by stating that different-sex couples have access to marriage, which satisfies their principal need for legal recognition of their relationships. They are, therefore, not comparable to same-sex couples who were given access to registered partnerships in order to counterbalance their exclusion from access to the legal recognition of their relationships prior to 2010.

Dissenting judges Tsotsoria and Grozev

Judges Tsotsoria (Georgia) and Grozev (Bulgaria) dissented from the majority judgment in terms of its approach and conclusion, arguing that the applicants had suffered a difference in treatment amounting to a violation of Article 14 taken in conjunction with Article 8 of the Convention.

The two judges argued, drawing on the Court’s existing case law, that different-sex couples and same-sex couples “are in principle in a relatively similar or comparable situation as regards their general need for legal recognition and protection of their relationship”. As such, therefore, the Court should have compared different-sex and same-sex couples for the purposes of Article 14 and then considered the Austrian government’s justification for the difference in treatment.

Since, in the view of these two judges, the Austrian government had not provided a sufficiently strong justification in support of the difference in treatment, the Court should have found a violation. To not do so, they argued, pursues “a risky course” and “inevitably runs the risk of sliding into stereotypes about the ‘different’ nature of a heterosexual and a homosexual relationship”.

Some interesting aspects of the judgment

Obviously, the question of whether in this case same-sex and different-sex couples are comparable, for the purposes of Article 14, will divide opinion.

Some will accept the Court’s approach in the light of the overall legal framework governing the legal recognition of relationships in Austria. Specifically, they will accept that it is reasonable to see the difference in treatment as having arisen from an attempt to address discrimination against same-sex couples – with registered partnerships being, not an “alternative” to marriage, but a way of giving some legal recognition to same-sex couples short of marriage – and that such a difference in treatment does not create a detriment for different-sex couples. In other words, different-sex couples are not being treated differently in a way that amounts to discrimination against them, because they already have access to the “gold standard” form of legal recognition, marriage. If any discrimination exists in the difference of treatment, therefore, it is against same-sex couples since they remain excluded from marriage. I tend towards this view myself.

Others, however, will regard the difference in treatment complained of to be based on sexual orientation (or sex) and consider that there is, in principle, no justification for it. This may be founded on the view that different-sex couples should have access to a more “modern” or “contemporary” legal institution other than marriage (which, it could be said, may be seen by some to be a different argument to one based on discrimination). It could be argued that this view is, perhaps, more persuasive in a legal jurisdiction like England and Wales in which both different-sex and same-sex couples have access to marriage, but only same-sex couples have access to civil partnerships.

What I find most interesting in the judgment are some of the remarks made by Judges Tsotsoria and Grozev. Although these judges were clearly in favour of different-sex couples having access to registered partnerships, they appear to endorse (or, at least, do not question) the current and settled view of the Court that the Convention does not guarantee same-sex couples a right to marry. They can be seen to do this by seemingly validating the Court’s view, expressed in Schalk and Kopf v Austria, that a justification for excluding same-sex couples from marriage that is “rooted in hundreds of years of history and tradition” is different to a justification about a difference in treatment based on “fresh legislative choices made today”. Are Judges Tsotsoria and Grozev endorsing the view that some discrimination is acceptable because it is rooted in history and tradition?

A further interesting point about the remarks made by Judges Tsotsoria and Grozev concerns their criticism of the majority for refusing to compare different-sex couples and same-sex couples as a “social reality”, but rather seeing them as “groups created by the legislature”. They argue:

“Different-sex couples and same-sex couples are not groups of individuals which have been created by regulatory choices. They are social groups which exist irrespective of regulatory choices…”

Such a view is in direct contrast with those who regard the “social reality” of couples, and their intimate relationships, being grouped on the basis of sex and sexual orientation as the direct outcome of regulatory choices made in society, principally by way of formalized rules enshrined in law.

A generally accepted view among sociologists, for instance, is that the social grouping of persons on the grounds of their sexual orientation flows from, and does not pre-exist, forms of legal and other regulation. In this sense, such groups are “socially constructed” by law and other means and, contrary to what Judges Tsotsoria and Grozev argue, have no independent existence outside of “regulatory choices”. By contrast, Judges Tsotsoria and Grozev can be seen to adopt an “essentialist” view of sexual orientation that has been expressed in the Court in many different ways since the time of Dudgeon v the United Kingdom.

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