Sexual Orientation and the European Convention on Human Rights: Voices and Perspectives - a very successful day!

On Friday 16th 2014, I was delighted to host the seminar Sexual Orientation and the European Conventionon Human Rights: Voices and Perspectives at the University of York.

The event, well attended by delegates from the UK and across Europe, aimed to facilitate dialogue between a range of stakeholders with different perspectives on human rights litigation about sexual orientation discrimination brought under the Convention.

Six speakers led conversations in the following areas:

Prof. Robert Wintemute (King’s College, London), drawing on his extensive knowledge of the Court and its case law, as well as his practical experience of intervening in complaints, led a discussion about European consensus on same-sex marriage and its relevance to evolving the jurisprudence of the Court. This produced a lively discussion about the role and value of European consensus in the Court’s review of complaints brought by same-sex couples who are prohibited from marrying in their national jurisdictions. Although the issue of consensus is a long-standing one, in respect of same-sex marriage a key question has been renewed with urgency: should the Court wait until a majority of the 47 contracting states grant same-sex couples marriage before it interprets Article 12 of the Convention to grant same-sex couples a right to marriage?

Nikita Ivanov (European Court of Human Rights) provided an insightful and unique account of the Court’s jurisprudence on ‘hatred’, and how this might be evolved in the future to better protect sexual minorities. Nikita drew out key strands of recent hate-related jurisprudence in the Court and considered it in respect of several outstanding complaints in the Court from gay men and lesbians (which I have previously discussed on the Blog). Nikita’s overview of the working of the Court, and the prospect for evolution in this area, was fascinating.

Jeffrey Dudgeon MBE focused on the role of the activist/advocate in the human rights litigation process. Jeff drew on his extensive knowledge of gay and lesbian political movements, UK legislative change, and Strasbourg jurisprudence, to give a truly unique and riveting account of his role in fostering and sustaining major legal change by advancing and evolving human rights. Jeff’s successful Strasbourg case, as well as his subsequent political activities, were the subject of much discussion throughout the day. Dudgeon v the United Kingdom continues to be of great significance in a global context, where over 80 countries impose blanket criminalisation on homosexual acts. Therefore, it was both fascinating and important to hear Jeff's views on the landscape of human rights in Northern Ireland, the UK, and beyond. The text of Jeff’s talk can be found here, and a handout can be found here.

Marc de Werd (Netherlands Court of Appeal, Amsterdam), a senior judge in the Netherlands, provided a wonderfully insightful view of the Convention from the standpoint of an appellate judge interpreting Strasbourg jurisprudence in a national context. Marc began his talk by considering the practical usefulness of the concept of ‘sexual orientation’ in the everyday work on an appeal court judge, pointing out some of its potential weaknesses and problems. This provoked further consideration and debate among delegates who, in their relative fields, use the concept of ‘sexual orientation’ in different and sometimes competing ways. Marc went on to discuss the role of Strasbourg jurisprudence generally in the national jurisdiction. He also provided a fascinating consideration of the role (potentially much more significant in the future) of the Court of Justice of the European Union. Marc's talk can be downloaded here.

Dr. Loveday Hodson (University of Leicester) led a talk about absent or silenced voices in the human rights process, focusing on litigation by lesbians applicants in Strasbourg. Beginning with some startling quantitative data about the small numbers of complaints by lesbians applicants considered by the Court and the former Commission and their overall lack of success, Loveday went on to provide an analysis of how lesbians have been conceptualised and treated in Strasbourg. Loveday provided a brilliant analysis of the treatment of complaints brought by lesbians, in respect of: how lesbians are imagined and actively constructed by the Court; the stereotypes about lesbians that are at play in the Court’s jurisprudence; and how such stereotypes have limited, and sometimes encouraged, the success of complaints by lesbians in Strasbourg. Loveday’s significant research in this area is ongoing and will hopefully be published in an academic journal in due course.

Damian Gonzalez-Salzberg (University of Reading, soon to be University of Sheffield) rounded off the day with a brilliant socio-legal consideration of how the Court constructs (homo)sexuality. As Damian lucidly explained, the question of how the Court conceptualizes homosexuality is not simply an ‘academic’ or semantic matter, but one that is at the very heart of its jurisprudence. Determining whether sexual orientation is innate or cultural (or, to use social science terms, essentialist/socially constructed) has been central, albeit implicitly, to the Court’s jurisprudence for decades but, as Damian argued, remains largely unexamined. Delegates had a lively debate about whether such questions were relevant to an international court and to what extent judges in the Court should explicitly examine how they conceive of sexual orientation. Since this is something I have myself previously considered and published about, I found Damian’s talk compelling. But it produced really lively and robust debate from stakeholders with very different views about whether this kind of analysis was relevant or useful to those administering human rights.

Overall, this event facilitated significant dialogue between lawyers, practitioners, academics and activists that, I am sure, will produce greater debate in the future.

I am very grateful to all delegates, to the speakers, and to the Department of Sociology at the University of York who supported the event. 

Left to Right: Jeffrey Dudgeon, Paul Johnson, Marc de Werd,
Loveday Hodson, Robert Wintemute.