Abstract
Over the last decade, the European Court of Human Rights (hereafter the Court) has clearly played a fundamental role in advancing equality for lesbian, gay, bisexual and transgender people; as such it is almost surprising that until now there has been no comparable book length summary of the Court’s decisions in this area. Paul Johnson begins his impressively thorough book by setting out three clear aims – to provide a complete overview of cases dealing with homosexuality (he specifically excludes bisexuality, transsexuality and intersexuality from the scope of his analysis), to offer a sociological instead of a purely doctrinal analysis of the Court’s decisions, and lastly, to make some suggestions as to how the Court could be more effective in ‘protecting the rights and lives of gay men and lesbians’ (p. 7). Johnson clearly meets all three aims, although the last aspect by its very nature involves a degree of speculation and throws up a range of further questions for the reader.
Part I (Chapters 1–2) of this book is a historical analysis of cases chronologically divided around Dudgeon v UK which was the first successful case in the Court relating to homosexuality, and it ‘inaugurated the homosexual of contemporary human rights law’ (p. 51). Johnson argues that Dudgeon was foundational to all following cases due to its essentialist construction of a ‘sexual personality’, which was clearly useful at the time but also limits the development of further rights for gays and lesbians in the present day. Using Foucault’s notion of discourse, he suggests that the struggle over who/what the homosexual subject is, is clearly key to understanding all further judgements (p. 42). However, when the court focuses only on the definition of homosexuality without attaching moral value to it, this tends to construct homosexuality as inherently negative, presumably because it is always constructed as the ‘other’ not ‘normal’ behaviour in opposition to heterosexuality (p. 59). Overall, his argument seems to be that essentialism has some advantages over constructionist definitions of sexuality as it closely relates to human rights discourses and the liberal framework into which the Court fits (p. 61). It is interesting that he so clearly highlights the practical advantages of an essentialist approach to sexuality in this context as current debates generally seem to be less in favour of such an approach.
Using Michel Foucault’s theory of (homo)sexuality as discursively constructed in the context of the Court’s jurisprudence allows Johnson to provide a detailed historical analysis of how judgements do not just reflect normative moral values but also construct them and in effect construct a homosexual subject. Following Foucault, he sees law and specifically the Court as a key site for the construction of homosexuality as a subject (p. 11). While it may be debateable to what extent this construction of homosexuality is taken up in other discourses, this is nevertheless a key argument to understanding the importance of the Court’s jurisprudence in a wider context. Johnson suggests that while decisions are often heteronormative, the Court clearly has a key role in developing a positive ‘global consciousness about gay and lesbian human rights’ (p. 13).
Johnson briefly considers the methodology of the Court in the Part II of his book (Chapter 3). However, this analysis primarily focuses on the impact the Court’s methodology has in individual cases rather than its exact definition. He suggests that contrary to what the court claims its three key methods are (margin of appreciation, consensus analysis, the living instrument principle) the Court’s moral and policy concerns are clearly the dominant factors in cases relating to homosexuality (p. 89). The persistent impact of moral concerns in the Court’s judgements can lead to more conservative outcomes than a strict adherence to its official methods might. Johnson suggest in particular that if there was greater focus on treating the Convention as a living instrument, the Court would be able to impose positive obligations on states to protect gay and lesbian citizens (p. 86).
In Part III (Chapters 4–8), he provides an analysis of the cases brought under different articles of the Convention. Johnson specifically focuses on those cases brought under Articles 8, 12 and 14 as examples of the standard privacy based approach to homosexuality, and those brought under Articles 3, 10, 11 and 12 as areas where more development is needed to advance anti-discrimination policies. He uses queer theory, particularly the work of Judith Butler and Eve Kosofsky Sedgwick, to highlight the limits of the public/private divide in this area and make some suggestion as to how the Court’s jurisprudence could be advanced in this respect.
Johnson is particularly critical of the limitations of private rights and the public/private divide in his analysis of cases relying on Article 8. In general, he notes that cases that engage Article 8 tend to focus on the private life aspect rather than family life which serves to sustain the notion of the family as inherently heterosexual and supports his claim that homosexuality is largely treated as a distinctly private issue (p. 113). He draws on Kosofsky Sedgwick’s Epistemology of the Closet (University of California Press, 1990) to argue that, in cases such as ADT v UK, people are in effect penalised for not hiding their sexuality in public (p. 105). Although he does not state it strongly, his analysis seems to suggest that there exists a more subtle form of normative regulation than just an outright denial of rights, if claims are more likely to succeed where claimants remain in the closet; in effect, ensuring that homosexuality stays private seems to become a requirement for successful claims to legal protection. The discussion of the public/private divide in relation to the Court's judgements is particularly helpful in highlighting the complex nature of its engagements with the regulation of sexuality. However, Johnson’s analysis of these issues and particularly his use of queer theory remain somewhat brief, presumably in part due to the sheer volume of cases he aims to cover.
While an analysis of Article 8 claims seems fairly obvious when discussing the Court’s jurisprudence on homosexuality, Johnson takes a more unusual approach in the final chapter of his book where he suggests that homophobic behaviour and statements, for example, public claims that ‘homosexuals are not fit to be parents’, should be covered by Article 3 (p. 209). He argues that the current lack of development in this area is due to earlier unsuccessful cases, which makes claimants reluctant to rely on it nowadays even in extreme cases such as Alekseyev v Russia (p. 193). He speculates that sustained legal engagement through cases brought under this article would eventually force the Court to develop its jurisprudence on this point in a way that protects the rights of gays and lesbians. The obvious advantage to successfully bringing a claim under Article 3 would be its potential to absolutely condemn discrimination on the grounds of sexuality in a way that few other Convention articles are capable of.
Arguing that systemic discrimination constitutes degrading treatment to the extent that it is detrimental to the mental and physical health of homosexuals is certainly an engaging argument (p. 197). However, it seems not immediately obvious whether being able to address an issue through the Court in this way would be enough to challenge systematic discrimination within a specific society. It might have been helpful here to consider the limit of what legal rights can achieve in practice. Additionally, Johnson does little to consider the impact of Article 10 when he argues that negative statements about homosexuality should be considered degrading treatment. Obviously, this would require a certain amount of speculation, but it seems highly likely that Article 10 would be engaged in some way in any case dealing with issues of speech. Again, this is an argument that I would have liked to see developed in more detail but which is somewhat curtailed by the range of the book.
In general, Johnson suggests that law is a key site for resistance and that the Court is crucial to legitimising resistance against homophobic laws and policies (p. 214). He makes a very interesting argument when he suggests that the Court clearly has a key role in raising legal consciousness about gay rights issues, which are often seen as marginal issues in national politics. Although he does criticise many individual decisions, overall he seems to suggest that the Court can have a positive impact on the context of equality for gay and lesbian citizens. This seems to be a particularly important point in light of the current UK debates around the usefulness of the Court and the Convention itself. Obviously, there is no clear empirical data on the effect the Court actually has on countries and populations in practice, but it does not require too much speculation to suggest that cases brought before it certainly serve to raise awareness of specific issues. Johnson’s book provides an incredibly thorough discussion of the sheer range of cases dealing with homosexuality that have come before the Court since its inception. It is clearly a useful and thought-provoking text for anybody interested in the Court’s jurisprudence in regard to homosexuality and its engagement with ‘moral’ issues more generally.