Theilen, Jens T.

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The Future of Sexual Orientation andGender Identity in Human RightsJens T. Theilen 2023-02-09T09:00:04The European Court of Human Rights (ECtHR) has a long history of adjudicatingcases concerning sexual orientation and gender identity. Many of those casesinvolved the controversial interpretive approach known as European consensus – aform of comparative legal reasoning building on positions taken by the states partiesand grouping these together to establish either a consensus or a lack of consensus.A number of recent cases have brought European consensus back into the spotlight.Most prominently, the case of Fedotova v. Russia concerned the lack of legalrecognition for same-sex partnerships in Russia. Unlike the chamber judgment,which unusually did not mention European consensus at all, the Grand Chamberreferred repeatedly to what it called ‘a clear ongoing trend at European level towardslegal recognition and protection of same-sex couples within the member States ofthe Council of Europe’ (para. 186). At this juncture, with debates on the future ofthe Council of Europe at a renewed high, it is worth revisiting the role that Europeanconsensus plays within the ECtHR’s case-law, particularly with regard to sexualorientation and gender identity, and where it might take us in the future.Janus-Faced European ConsensusEuropean consensus is notoriously Janus-faced: depending on the constellation,it can be used to argue in different directions. If there is a consensus in favour ofthe applicant and the respondent state thus finds itself part of a minority position,then the ECtHR usually finds a violation of the Convention (the so-called “spureffect”). When it identifies a lack of consensus or a consensus against the applicant,conversely, it leaves the respondent state a wide margin of appreciation and usuallyfinds no violation (the so-called “rein effect”). The flexibility that this Janus-facedcharacter gives to European consensus is no doubt part of why it has acquired sucha weighty role in the ECtHR’s case-law. Both the rein effect and the spur effecthave been relevant in high-profile cases concerning sexual orientation and genderidentity, from early cases like Dudgeon v. the United Kingdom and Rees v. theUnited Kingdom via leading cases like Christine Goodwin v. the United Kingdomand Schalk and Kopf v. Austria to subsequent cases like Hämäläinen v. Finland andOliari v. Italy, to name only a few.Several cases decided this year, besides Fedotova v. Russia, similarly relied onEuropean consensus. Macat# v. Lithuania concerned the labelling of a children’sfairy tale book depicting same-sex relationships as harmful to children. The ECtHRsurveyed the states parties’ laws on same-sex relationships in school curricula andconcluded, inter alia, that ‘legal provisions which explicitly restrict minors’ accessto information about homosexuality or same-sex relationships are present in onlyone member State’ (para. 212). In Y v. France, the ECtHR revisited a long line ofcase-law dealing with gender registration, although in an unusual constellation- 1 -with particular difficulties since the applicant was an intersex person. The ECtHRrelied heavily on European consensus – since the ‘vast majority’ (para. 77) of statesparties allow only for binary gender markers – to refuse a designation as ‘intersex’or ‘neutral’ on the applicant’s birth certificate. Both the rein effect and the spur effect,then, retain their relevance in the ECtHR’s case-law.Criticism of European ConsensusWhile the ECtHR uses European consensus in different ways, academic criticismhas overwhelmingly focussed on the rein effect. This is understandable, particularlyin cases concerning sexual orientation and gender identity: via the medium ofEuropean consensus, heteronormative and cisnormative assumptions underlyingthe states parties’ legal orders are quietly transferred to the European level andgiven normative force by the ECtHR. When resulting in the denial of rights, it is mostimmediately visible that this is problematic. Liberal critics of European consensushave therefore pointed out that the rein effect leads to the curtailment of minorityrights and brings with it the danger of a ‘tyranny of the majority’. The spur effect isless discussed in comparison, but it is worth dwelling on. The rein effect is rightlycriticised for the denial of rights it leads to, but it is the spur effect, after all, that holdsthe key to where European consensus would take us in the future.As I argue in more detail in European Consensus between Strategy and Principle(available open access here), the focus on how the rein effect of Europeanconsensus curtails minority rights should be expanded to question its relation topower more generally. Regardless of whether the rein effect or the spur effect is atissue, European consensus carries a conservative lilt since it refers to the statusquo in the form of the states parties’ legal systems – it takes up positions that arealready dominant in public policy and law, rather than looking for marginalisedpositions or those that could yet be developed in the future. As a form of reasoningthat groups legislative positions together without interrogating the structural forcesat play in bringing them about, European consensus also points away from criticalengagement with power structures both intra-nationally and transnationally withinEurope. Even in cases involving the spur effect, it merely reproduces the dominantposition at the European level without providing a counter-hegemonic rationale forthe ECtHR’s decision: the premise of establishing commonality makes it difficult touse European consensus for anything else.The Politics of Expansive Rights InterpretationsCritical discussions of the spur effect are difficult, in part, because they all tooeasily slip into well-rehearsed debates about ‘new’ human rights. Findings of rightsviolations in sexual orientation and gender identity cases, in particular, are often castas involving ‘new’ rights – to legal gender recognition, same-sex civil partnerships,or perhaps (as the ECtHR tentatively hints at but steers well clear of) same-sexmarriage. The dissenting opinion of Judge Wojtyczek in Fedotova v. Russia is aparticularly explicit example: relying on an originalist reading of the Convention,he claims that the ‘question at stake is not about the exercise of Convention rightsbut about adding new rights to the Convention’ (para. 3.3.). Casting rights as ‘new’allows for them to be more easily questioned, be it as causing rights inflation, as- 2 -endangering the ECtHR’s legitimacy, or (Wojtyczek’s primary line of attack) as lyingoutside the ECtHR’s competence to adjudicate on. In a previous dissenting opinion,Judge Wojtyczek already specified what it is that he wants to safeguard by adoptingthis interpretive approach: the ‘complementariness of the biological sexes of the twospouses’ as a ‘constitutive element of marriage’, defined as ‘a social institution opento procreation’.Faced with what amounts to thinly veiled homophobia and transphobia cast inoriginalist language, it is hardly surprising that at least some commentators who areotherwise critical of European consensus welcome its spur effect since, unlike therein effect, it leads to more expansive interpretations of minority rights, potentiallypushing the ECtHR towards ‘progressive’ rulings. But this carries its own risks.Giving weight to the spur effect in this way implies a maximalist conception of humanrights in which a higher level of human rights protection is self-evidently acceptedas an improvement. This maximalist approach resonates with many activists’ andacademics’ view of human rights as inherently benign, always pointing towards abetter world. As critiques of human rights have long pointed out, however, humanrights are a field of discursive struggle in which different visions of a just societyare fought out, and their dominant interpretations may be oppressive as well asliberatory. The maximalist conception of human rights implied by the spur effectmakes it difficult to incorporate this perspective and thus shifts the focus awayfrom questioning how human rights themselves relate to power – even when theyostensibly vindicate gay rights, trans rights, or the rights of other minorities. Relyingon European consensus as the basis for change, in other words, distracts usfrom debating which direction the ECtHR’s case-law should develop in to actuallycontribute to more just societies.Beyond European ConsensusOnce we move beyond European consensus, we can critically engage in thesedebates. An important example of how the maximalist conception of human rightsis already being questioned concerns the ECtHR’s ‘coercive overreach’ – itsincreasing reliance on criminal law as a means of fleshing out states’ positiveobligations to prevent and offer redress for rights violations. Does extendingand solidifying the reach of the carceral state in this way really lead to more justsocieties, especially for those already most marginalised and therefore most likelyto be targeted by law enforcement? For issues pertaining to sexual orientationand gender identity, queer theorists and critical race theorists have asked similarlyprobing questions. Within queer communities, who profits from the extension of hatecrime legislation, from inclusion in state-sanctioned partnerships and marriage, orfrom more diverse gender markers – and who loses out? It is crucial, I would submit,to also grapple with these questions when engaging with the ECtHR’s case-law onsexual orientation and gender identity. The direction that case-law should develop inis not predetermined, and the weighty role currently given to European consensusshould not make us believe otherwise.- 3 -

The Future of Sexual Orientation and Gender Identity in Human Rights

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