Abstract
On 30 June 2016, the European Court of Human Rights (hereafter ‘European Court’) decided that a binational same-sex couple was discriminated against because they were not allowed to marry; and at the same time, they were unable to live in Italy as a couple. For nearly one decade, human rights non-governmental organizations (NGOs) have submitted third-party interventions asking the European Court to recognize that unmarried same-sex couples should be treated differently from unmarried different sex couples when the first have no possibility of marrying. This article argues that the European Court has finally accepted what the NGOs have suggested since 2007, and that the decision in Taddeucci and McCall v. Italy signals a positive step forward from the ‘analogous situation’ doctrine towards recognizing indirect discrimination on the grounds of sexual orientation for same-sex couples.
Keywords
Introduction
On 5 June 2016, the Italian Parliament passed Law 76/2016 Regolamentazione delle unioni civili tra persone dello stesso sesso e disciplina delle convivenze (Rule for civil unions among persons of the same sex and de facto couples). 1 Such a law makes Italy the last Western democracy to provide same-sex couples with some forms of legal recognition. 2 Before Law 76/2016, same-sex couples complained of violations of their human rights before the European Court of Human Rights (hereafter ‘European Court’). Two of these applicants were Taddeucci and McCall, a same-sex couple, gay men, the first Italian and the second New Zealander. The two men were prevented from living together in Italy because the Italian government did not allow them to marry and did not recognize their relationship for immigration purposes. On 30 June 2016, the European Court issued a ground-breaking decision on unmarried same-sex couples in Taddeucci and McCall v. Italy (‘Taddeucci and McCall’), in acknowledging for the first time that an unmarried same-sex couple is discriminated against when not allowed to attain rights and benefits attached to marriage.
This article discusses that a number of non-governmental organizations (NGOs) pressured the European Court to recognize indirect discrimination on the grounds of sexual orientation suffered by same-sex couples, for nearly one decade. It is important to acknowledge here that it is not possible to find a clear cause–effect connection between the NGO advocacy and the European Court decision. This is because NGOs’ advocacy often happens informally over numerous conversations between activists, international organizations’ functionaries and governmental delegates. Moreover, the European Court’s decision-making is determined by the combination of many factors, some of which are addressed in this article, and the NGOs’ advocacy is only one part of the process. Nonetheless, the article aims to advance that NGOs have had an important role in framing and conceptualizing how the indirect discrimination principle applies to same-sex couples.
In doing so, the article is structured as follows. First, the article discusses the prohibition of discrimination on the grounds of sexual orientation, and it briefly outlines that the doctrine of indirect discrimination started consolidating in the 2000s. Second, the article introduces the theme of NGO advocacy at the European Court, and at the Council of Europe (CoE), in highlighting the importance of European Court’s adjudications in shaping the political and social debate in Europe and the role of NGOs in influencing its decision-making process. Third, the article discusses the third-party interventions sent by numerous NGOs in occasion of six cases dealing with same-sex couples’ rights, and it shows that NGOs spent a great deal of attention to frame same-sex couples’ issues in a way that European Court could accept. Finally, the article discusses some possible implications of the evolution of the indirect discrimination principle for same-sex couples.
The prohibition of discrimination on the grounds of sexual orientation
As McGoldrick correctly points out, among the various regional and international systems of human rights protections, the developments of the prohibition of discrimination on the grounds of sexual orientation have been the most remarkable under the aegis of the European Convention on Human Rights (hereafter ‘European Convention’). 3 Initially, in 1981, the European Court failed to discuss in Dudgeon v. the United Kingdom that laws criminalizing same-sex sexual acts in Northern Ireland were in violation of Article 8 (right to respect for private and family life) in conjunction with Article 14 (prohibition of discrimination) 4 ; still acknowledging that homosexuality is a private manifestation of personality and therefore it falls within the scope of the Article 8 meaning of ‘private life’. 5
Nonetheless, in the same year, the Parliamentary Assembly of the CoE issued Recommendation 924 (1981) Discrimination Against Homosexuals, calling upon CoE member states to eliminate discrimination on the grounds of sexual orientation in their domestic legislation and policies. 6 Subsequently, the Parliamentary Assembly and the Committee of Ministers reinforced the prohibition of discrimination on the grounds of sexual orientation in several recommendations and resolutions. 7 Today, sexual orientation is a ‘suspect’ ground of discrimination and states enjoy a ‘narrow’ margin of appreciation on the matter. 8 However, as Hodson points out, the European Court has for a long time failed to discuss whether same-sex couples are discriminated against when they are not allowed to access rights and benefits attached to marriage, because they are not allowed to marry. 9 In other words, the European Court has failed discussing whether same-sex couples suffer indirect discrimination on the grounds of sexual orientation when they are not allowed to marry.
For a long time, the CoE’s position on lesbian, gay, bisexual and transgender (LGBT) people’s right to marry and to form a family was held upon two pillars. First, unmarried same-sex couples should be able to access the same rights and benefits available for unmarried different sex couples. In fact, in 2003, the European Court decided the case of Karner v. Austria (‘Karner’), 10 and it found that the government was in violation of Article 14 in conjunction with Article 8 of the European Convention. This was because the applicant was denied the right to succeed to a tenancy after the death of his male unmarried partner, when an unmarried different sex partner would have been allowed to do so. 11 Even though the European Court was not ready to recognize same-sex couples enjoy protection of family life, Karner laid down an important principle, under which unmarried same-sex couples are in an analogous situation to unmarried different sex couples and therefore they should access the same rights and benefits.
Second, and conversely, the right to marry and to form a family as enshrined in Article 12 of the European Convention is to be understood as only referring to a different sex couple. 12 Indeed, in 2010, the European Court recognized that the relationship between two partners of a same-sex couple falls within the notion of ‘family life’ as protected in Article 8, just like an unmarried different sex couple would. 13 In that occasion, the European Court noted that there is a European consensus in providing some forms of recognition of same-sex couples, 14 but Article 12 ‘enshrined’ the meaning of marriage as being between a man and a woman. 15 In Johnson’s words, because Article 12 refers to ‘men and women’ as opposed to the usual ‘everyone’ and ‘no one’ of the rest of the European Convention, the ‘choice of wording in Article 12 must thus be regarded as deliberate’. 16
Currently, the second of the two pillars remains in place, and the European Court has shown no intention to review its position on the heteronormativity of the right to marry. Instead, the first pillar has been partially revised by a 2016 European Court decision in Taddeucci and McCall. The evolution of the application of the indirect discrimination to same-sex couples is discussed in this article.
Indirect discrimination
Article 14 contains a general prohibition of discrimination, both direct and indirect, in regard to any other rights of the European Convention and Protocols. 17 In addition, Protocol 12 provides a stand-alone general equality provision. 18 To verify whether a treatment is prohibited by Article 14 and Protocol 12, the European Court developed the test of the ‘analogous situation’ to determine whether the applicants can compare themselves with another group of people who are treated more favourably. 19 As a consequence, for many years the European Court has focused on formal equality, that is, ‘likes should be treated alike’. 20 Indeed, as just stated above, the European Court has constantly considered that unmarried same-sex couples are in an ‘analogous situation’ to unmarried different sex couples. 21 But an evolution in the anti-discrimination doctrine has been detected in the past years.
Möschel explains that the European Court has implicitly recognized indirect discrimination since 2000 and then openly since 2007. 22 One example is Thlimmenos v. Greece (‘Thlimmenos’), where the applicant was excluded from a job because of his criminal conviction for having refused to enlist in the army, refusal that was due to his religious beliefs. In that occasion, the European Court explained that discrimination occurs also when states ‘fail to treat differently persons whose situations are significantly different’. 23 A few years later, in 2007, the European Court openly discussed indirect discrimination in DH and others v. the Czech Republic, and it maintained that allocating a disproportionate percentage of Roma children in special schools amounted to indirect discrimination on the grounds of race. 24 In the following years, the European Court continued discussing cases of indirect discrimination on the grounds of race, 25 and Möschel argues that since 2007 the European Court has strengthened the distinction between direct and indirect discrimination on the grounds of race. 26
In addition, when discussing the (fragile) convergence of the United Nations Human Rights Committee (hereafter HR Comm) and regional courts’ case law in the approach to sexual orientation issues, Abrusci comments that the European Court seems to exclude that the different treatment between a married different sex couple and a same-sex couple unable to marry is discriminatory. Whilst the HR Comm seems to leave a door open for such interpretation. 27 Moreover, Abrusci comments that the European Court has ‘stated that it would review indirect discrimination as rigorously as it reviews direct discrimination, thus stepping closer to’ other regional bodies’ approaches. 28 However, at the time of her writing, Abrusci was not yet able to discuss the decision in Taddeucci and McCall, which represents a positive step towards the recognition of indirect discrimination for same-sex couples unable to marry.
This article discusses the evolution of the European Court’s interpretation of the principle of indirect discrimination on the grounds of sexual orientation for unmarried same-sex couples. In doing so, the article takes into account the influence of a decade of non-governmental advocacy. Before moving to analyse the third-party interventions sent by NGOs to the European Court, it is useful to briefly discuss NGOs’ advocacy at the European Court.
Non-governmental advocacy and the European Court
NGOs decide their advocacy agenda and promote human rights campaigns to draw attention to pre-existing problems and to ‘create’ new issues. 29 In doing so, they shape the human rights debate which in turn impacts upon the human rights standard setting. 30 However, to be agents of legal change, NGOs need to lobby international organizations and states to support their issues.
In particular, in the European human rights system, the European Court’s adjudications have an important impact on the work of the Parliamentary Assembly of the CoE and of the Committee of Ministers of the CoE. Indeed, as Rapporteur Gross pointed out in 2010, CoE recommendations and resolutions are in effect the ‘transformation of the Court’s ruling into political discourse’. 31 Moreover, even though a European Court adjudication is only binding for the state part of a dispute, a European Court’s adjudication in favour of LGBT applicants increases the possibilities that CoE member states adopt reforms favourable for sexually and gender diverse peoples for states non-part of the dispute. 32 Similarly it has been argued that the rulings of the European Court are very important to advance the rights of the LGBT community in Europe, as the European Court ‘has the potential to play a dynamic role in sculpturing the social landscape of Europe’. 33
Many NGOs have recognized this dynamic role. 34 Under Article 36 of the European Convention, which allows them to submit third-party written comments, some LGBT and human rights NGOs have sent third-party interventions on a wide range of topics. Robert Wintemute, an academic lawyer, started filing third-party interventions on behalf of ILGA Europe – the European branch of the International Lesbian, Gay, Bisexual, Trans and Intersex Association – in 2000, to support the applicant in Fratté v. France. 35 Since then, Wintemute and ILGA Europe gathered the support of many human rights NGOs, 36 to show to the European Court that LGBT people’s issues are important human rights concerns, and not special interests of a group. 37 This article analyses some of these third-party interventions.
The social movement theorist Joke Swiebel comments upon the work of LGBT advocates in the 1990s, and she explains that LGBT NGOs are successful in influencing the international human rights agenda when they pay ‘a great deal of attention to framing the issue in terms the organization might swallow’. 38 In her opinion, European LGBT activists framed LGBT issues as a question of human rights and more specifically as an anti-discrimination issue. At that time, the European Union (EU) was adopting measures against racial discrimination, and LGBT NGOs lobbied the EU to encompass sexual orientation in such anti-discrimination policies.
In sum, the ensuing sections present the legal analysis of a selected sample of NGOs’ third-party interventions submitted by ILGA Europe and other NGO partners sent in support of the applicants in cases dealing with the recognition of same-sex couples. In particular, the sections show that the NGOs spent a great deal of effort to conceptualize the discrimination suffered by same-sex couples in terms that the European Court might ‘swallow’. To so do, these NGOs expanded upon the ‘significantly different situation’ approach already developed by the European Court itself.
The ‘significantly different situation’ argument used for the first time
In June 2007, Fédération Internationale des ligues des Droits de l’Homme (FIDH), International Commission of Jurists (ICJ), Advice on Individual Rights in Europe (AIRE Centre) and ILGA Europe submitted a third-party intervention in favour of the applicant in Schalk and Kopf v. Austria (‘Schalk and Kopf’). The applicants were a same-sex couple complaining of violation of Article 12 (right to marry) because they have been refused marriage from the Austrian authorities. They also alleged violation of their right to the peaceful enjoyment of their possessions because, in the event that one partner died, the surviving partner would be discriminated against as being ‘in a much less favourable position under tax law than the surviving partner in a married couple’. 39 Indeed, they maintained that the wording of Article 12 of the European Convention has the meaning that a man and a woman have the right to marry, not necessarily a man with a woman and vice versa.
The coalition of NGOs wrote that there is a ‘growing consensus in Europe and other democratic societies that same-sex couples must be provided with
The decision in Schalk and Kopf signals a significant step forward in the recognition of same-sex couples’ rights, but in 2010 the European Court was not ready to accept that same-sex couples suffer indirect discrimination on the grounds of sexual orientation when they are not allowed to access rights and benefits attached to marriage. The coalition of NGOs kept arguing for the ‘significantly different situation’ approach.
In November 2008, FIDH, ICJ, AIRE Centre and ILGA Europe submitted a third-party intervention in favour of the applicant in MW v. the United Kingdom (‘MW’). After the death of his male partner, the applicant would have liked to apply for the benefit to the survivor of a married couple. 41 The applicant complained of violation of Article 14 in conjunction with Articles 8 and 1 of Protocol 1, because as the survivor of a same-sex couple – and having been unable to marry – he was denied access to benefits otherwise available for the survivors of married different sex couples. The coalition of NGOs explained that as long as that the European Court was not ready to interpret Article 12 as requiring member states to allow same-sex couples to marry, excluding same-sex couples from rights and benefits attached to marriage is an indirect discrimination on the grounds of sexual orientation – according to the significantly different situation approach. 42 However, for a second time, the European Court did not accept the significantly different situation approach and used instead the analogous situation doctrine. Indeed, the European Court found the application manifestly ill-founded because the applicant was at that time in the same situation as an unmarried different sex couple.
The two cases, Schalk and Kopf and MW, are similar. In both cases, same-sex couples were denied rights and benefits attached to marriage. The third-party interventions sent to support the applicants in the two cases – and sent by the same coalition of NGOs – proposed a significantly different situation approach, but the European Court did not yet accept the idea that unmarried same-sex couples are in significantly different situation to unmarried different sex couples, and therefore they suffered from indirect discrimination on the grounds of sexual orientation. In Schalk and Kopf and MW, the European Court is still using the analogous situation approach, and it continues to do so in a case dealing with same-sex couples’ right to access second-parent adoption.
Same-sex couples and second-parent adoptions
In February 2011, FIDH, ICJ, ILGA Europe, BAAF (British Association for Adoption and Fostering) and NELFA (Network of European LGBT Families Associations) submitted a third-party intervention in support of the applicants in Gas and Dubois v. France (‘Gas and Dubois’). The two applicants were lesbian women in a civil partnership. Gas wanted to adopt Dubois’ child who was born with donor insemination. Under French law, a child born through donor insemination in a different sex couples has both parents legally recognized (the genetic mother and the male partner of the mother), while lesbian women were not allowed to access donor insemination. Because Gas and Dubois went to Belgium to undergo in vitro fertilization treatments, the child had only one parent legally recognized. Furthermore because under French law only married spouses could apply for second-parent adoption, Gas was refused second-parent adoption by national authorities. 43
The coalition of NGOs claimed that because same-sex couples were not able to marry under French law at that time, they were systematically excluded from second-parent adoption. Therefore, the applicants suffered an indirect discrimination based on their sexual orientation because they were not exempted from the requirement to be married, which was for them unattainable. 44 The European Court refused again the significantly different situation principle and it focused instead on the issue of analogous situations. In doing so, the European Court denied the discrimination on the grounds of sexual orientation, because also a different sex couple in civil partnership would have had their application for second-parent adoption refused. 45
When commenting the decision in Gas and Dubois, Hodson explains that the European Court considers that the protection of marriage is a legitimate reason to perpetuate the distinction in treatment between married and unmarried couples. However, the problem with LGBT couples is that they are often not able to choose whether to alter their family legal status with marriage or not. 46 Therefore, the European Court did not consider whether the fact that the couple could not access marriage because of their sexual orientation was discriminatory, and it applied the analogous situation reasoning.
An argument for marriage equality
In October 2009, FIDH, ICJ, AIRE Centre and ILGA Europe sent a third-party intervention in support of the applicants in Chapin and Charpentier v. France (‘Chapin and Charpentier’). In June 2004, the applicants were married by the mayor of Bègles; but, just two weeks after, their marriage was nullified because the then French law did not recognize same-sex marriages. 47 The coalition of NGOs asked the European Court to declare that Article 12 should be interpreted to require CoE member states to open marriage to same-sex couples because excluding same-sex couple from marriage is a difference in treatment based on sexual orientation and without a justifiable reason. 48
As usual, the European Court rejected the significantly different situation approach and did not find violation because CoE member states have a ‘certain margin of appreciation’ on marriage equality. However, since May 2013, France has allowed same-sex couples to marry and therefore the applicants could freely marry. 49
In sum, despite NGOs’ best efforts, the European Court discarded considering whether same-sex couples suffer indirect discrimination on the grounds of sexual orientation when prevented from marrying. In addition, the European Court used the decisions in Chapin and Charpentier to keep consolidating its view that CoE states have no obligation to regulate same-sex marriage. Before the decision in Taddeucci and McCall, a coalition of NGOs attempted another time to argue that indirect discrimination on the grounds of sexual orientation are in violation of Article 14, and the European Court took another chance to consolidate the heteronormativity of marriage.
The ‘significantly different situation’ principle overlooked for the last time
In March 2014, FIDH, AIRE Centre, ILGA Europe, ECSOL, UFTDU (Unione Forense per la Tutela dei Diritti Umani) and LIDU (Lega Italiana dei Diritti dell’Uomo) submitted a joint third-party intervention to support the applicants in Oliari and Others v. Italy (‘Oliari’), where the applicants were three same-sex couples who complained that they were not allowed to marry in Italy or to have their relationships recognized otherwise. 50 As usual, the collation of NGOs repeated the significantly different situation doctrine laid down in Thlimmenos to explain that limiting particular rights to married couples without providing same-sex couples access to marriage is an indirect discrimination, which is not justifiable. 51
With regard to the alleged violation of Article 8 in conjunction with Article 14, the European Court found that the Italian legislators did not take into consideration important aspects of internal consensus on same-sex couples’ legal recognition. In fact, the highest judicial authorities in Italy, such as the Constitutional Court, 52 and the Court of Cassation, 53 had already ruled on the need to legislate for same-sex couples’ relationships, and that the majority of the Italian population supported the legal recognition of same-sex couples. 54 Therefore, the European Court deemed that the government had ‘overstepped their margin of appreciation and failed to fulfil their positive obligation to ensure that the applicants have available a specific legal framework providing for the recognition and protection of their same-sex unions’. 55
In relation to Article 12, the European Court said that although the interpretation of Article 12 ‘would no longer consider that the right to marry must in all circumstances be limited to marriage between two persons of the opposite sex’, 56 this article does not require governments to legalize marriage equality, and the complaint under Article 12 is manifestly ill-funded. Oliari represents a victory for the LGBT movement as it is binding upon Italy to establish civil unions for same-sex couples, and because there is the hope that the adjudication will have positive effects on CoE member states which do not recognize same-sex unions. 57 However, it appears clear that the European Court does not want to change its position on marriage (in)equality. 58 Moreover, the European Court made it clear that considerations related to the ‘internal consensus’, which reports the internal attitude of citizens and residents in the respondent state, 59 determined that the Italian government had overstepped its margin of appreciation regarding same-sex couples’ recognition. Arguably, such a positive obligation does not exist for other CoE members whose national judicial authorities have not yet expressed a similar internal consensus. Even more so than the Oliari case, Taddeucci and McCall is a promising step forward for the recognition of same-sex couples in the CoE as it shifts away from the analogous situation principle.
Taddeucci and McCall: The ‘significantly different situation’ approach finally prevailed
In May 2012, ICJ, ILGA Europe and NELFA submitted a third-party intervention in favour of the applicants in Taddeucci and McCall. As mentioned in the introduction, the applicants were a binational same-sex couple, gay men, one an Italian and the other a New Zealander. The couple first lived together in New Zealand and then moved to Italy. Initially, the second applicant was granted a temporary residence permit as a student; he then applied for a permanent resident permit as a family member. Because Italian law only understood ‘family member’ as spouses, minor children, and dependent adult children and parents, the application for permanent resident permit was rejected. 60 The applicants complained they had been discriminated against on the grounds of sexual orientation as the partner with New Zealand citizenship was denied a family resident permit in Italy and the two applicants could not live in Italy as a couple.
The coalition of NGOs jointly submitted that even in the absence of a marriage certificate, there is a trend among European states to recognize that binational same-sex unmarried couples should not be separated and that there should be ‘a means for them to make a life together’. 61 Moreover, according to the significantly different situation principle developed in Thlimmenos, when couples acquire benefit from the marital status – in the case the possibility to receive a family residence permit – and same-sex couples are not allowed to marry, they suffer an indirect discrimination on the grounds of sexual orientation.
After acknowledging ICJ, ILGA Europe and NELFA’s arguments exposed in their third-party intervention, 62 the European Court estimated that the applicants – an unmarried same-sex couple – have been treated similarly to an unmarried different sex couples. The European Court finally accepted the NGOs’ argumentations and said that the situation of the applicants is significantly different to the situation of an unmarried different sex couple because for the same-sex couples the marriage requirement is an insurmountable obstacle (‘obstacle insurmountable’). 63 Therefore, because the government treated the unmarried same-sex couples in the same way as an unmarried different sex couple, Italy has discriminated against the applicants, on the basis of their sexual orientation. 64 In doing so, the European Court accepted for the first time that the doctrine developed in Thlimmenos applies also to the case of an unmarried same-sex couple, after NGOs have presented such an argument for nearly a decade.
[As noted, it is not possible to find a linear cause–effect correlation between the non-governmental advocacy and the European Court adjudications. First, this article analysed six NGO third-party interventions because these documents allow a textual and legal analysis of NGOs’ advocacy. However, much of the NGO advocacy occur behind closed doors and in informal meetings with states and international organizations’ functionaries, and the analysis of these informal types of advocacy is beyond the scope of this legal analysis. 65
Second, the European Court’s decision-making depends upon many different and intertwined aspects, neither of which can be isolated from the other. For example, an important test for the European Court’s decision is the European consensus, 66 that is, a general trend and general common standard among CoE member states’ legislation and policies. 67 The European Court uses the European consensus test to foster the harmonization among member states’ legislations, 68 but it also serves political reasons. In fact, the European Court cannot force the view of a small minority of states on the rest of the CoE because ‘[i]f it were to do so, governments may threaten to leave the convention system, thus leaving the European human rights regime worse off’. 69 In other words, the more CoE member states allow further recognition, the more likely the European Court will follow through in granting increasing human rights’ protection to LGBT couples.
However, having acknowledged the limits of this analysis, it is possible to say that this article highlights a pattern in which LGBT NGOs consistently asked the European Court to use a principle that it was already developing within its jurisprudence – the consolidation of the ‘significantly different situation’ test to assess indirect discrimination under Article 14 – and apply it to unmarried same-sex couples. After one decade of lobbying, and also due to the further consolidation of the indirect discrimination principle within the European Court’s jurisprudence, the European Court finally accepted that unmarried same-sex couples are discriminated against, on ground of their sexual orientation, when they are treated less favourably than married different sex couples.
This development has a lot of potential to increase the protection of LGBT couples’ rights in Europe, especially their right to form a family, but we need to wait for further development to understand the implication of this new approach. However, some preliminary considerations can be made and the final section of this article highlights the implication of the evolution of the interpretation of Article 14 for unmarried same-sex couples’ parental rights.
The implications of the evolution of the interpretation of Article 14 for same-sex couples’ parental rights
Taddeucci and McCall is a promising step forward for the recognition of same-sex couples in the CoE. In Taddeucci and McCall, the European Court accepted for the first time that not allowing same-sex couples to access rights and benefits attached to marriage is an indirect discrimination on the grounds of sexual orientation. The European Court’s shift from the analogous situations to the significantly different situation approach has the potential to open the doors for a much needed discussion on the LGBT couples’ access to rights and benefits in other CoE member states, in particular in relation to LGBT people’s right to form a family.
The right to form a family is particularly important for LGBT couples because they might not be able to form a family unless through adoptions or assisted reproductive treatments. However, there are no CoE’s positive obligations for states to allow LGBT people to enjoy the right to adopt or the right to access assisted reproductive treatments. In general, the recognition of LGBT parents’ right to form a family has been left to the discretion of the national governments. This is because, in Hodson’s words, the European Court uses a heteronormative approach to family rights and cannot ‘conceptualise the child in the context of LGBT family relationships’. 70 In other words, at least until Taddeucci and McCall, LGBT couples enjoyed different levels of family rights depending on under which state’s jurisprudence they were living. This latter point can be explained with a comparison between the aforementioned Gas and Dubois and X and Others v. Austria (‘X and Others’).
As mentioned above, in 2012, the European Court decided that Gas and Dubois did not suffer discrimination on the grounds of sexual orientation because an unmarried different sex couple would also have had their application for second-parent adoption refused. However, just one year later, the European Court decided the case of X and Others, where the applicants were a lesbian couple living with the genetic son of one of the two. Similarly to the French case, the female partner of the mother of the child wanted to stipulate a second-parent adoption agreement, but the domestic Austrian courts held that the adoption of children from the female partners of their mothers was impossible. Differently to Gas and Dubois, the applicants complained of direct discrimination on the grounds of sexual orientation because the Austrian authorities would have allowed an unmarried different sex couple to stipulate a second-parent adoption agreement, but not them. 71 Eventually, the European Court maintained that the government did not provide significant reasons to exclude unmarried same-sex couples from second-parent adoption, while allowing unmarried heterosexual couples. 72
Ammaturo erroneously commented that the European Court overturned its previous position on second-parent adoption only one year after the decision in Gas and Dubois. 73 Instead, it should be noted that the European Court applied the same type of reasoning in both Gas and Dubois and X and Others, which is that unmarried same-sex couples should be entitled to the same rights and benefits of unmarried different sex couples. The difference in the outcomes of the two decisions is justified by the fact that under the French law of the time unmarried different sex couples would not have been able to access second-parent adoptions just as an unmarried same-sex couple; while under the Austrian law of the time, an unmarried different sex couple would have accessed the second-parent adoption. With the evolution of the interpretation of the prohibition of discrimination of Article 14 to also include indirect discrimination, a difference in outcomes such as the one just highlighted between the French and the Austrian cases would no longer be acceptable.
Another evolution could occur in the application of the right to access assisted reproductive treatments, which can be understood as both in vitro fertilizations with sperm donations and gestational surrogacy agreements. The European Court jurisprudence on the subject is limited, and as a general comment, it can be said that both practices are left to be regulated by national governments. In the 1970s, the European Court considered that Article 12 of the European Convention does not guarantee the right to ‘integrate into a family a child which is not the natural child of the couple concerned’. 74 Moreover, in three recent cases the European Court avoided discussing whether prohibiting or authorizing surrogacy arrangements, leaving the matter to be decided by national authorities. 75 Even though it is difficult to make predictions regarding these types of issues due to the lack of jurisprudence within the European Court and the CoE more in general, it is probable that with the evolution of the indirect discrimination principle of Article 14, unmarried same-sex couples should no longer be excluded from right to form a family, such as the right to access in vitro fertilizations or gestational surrogacy agreements, which are often the privilege of married different sex couples.
In sum, the evolution of the interpretation of Article 14 is of particular relevant for same-sex couples’ right to form a family because these rights are often connected to marital status by nation governments. And at the same time, as addressed in this article, the European Court had expressed no interest in reviewing its position on the heteronormativity of the right to marry. In other words, with the evolution of the indirect discrimination doctrine, LGBT and human rights’ activists have the possibility to lobby for further protection of LGBT couples’ rights, in bypassing the marriage institution and advocating for the recognition of some rights and benefits that are attached to marriage. In doing so, even though activists will not achieve marriage equality, they will potentially erode the heteronormative privileges of married different sex couples.
Conclusion
The article analysed the third-party interventions sent by NGOs to explain relevant legal points regarding six cases dealing with same-sex couples. ILGA Europe and other human rights NGOs submitted third-party interventions to support the applicants. The coalitions of NGOs used the significantly different situation argument since 2007. They maintained consistently that when unmarried same-sex couples are prevented from accessing rights and benefits attached to marriage, they are actually suffering an indirect discrimination on the grounds of sexual orientation. In particular, the coalition of NGOs has systematically referred to the Thlimmenos doctrine, under which Article 14 is violated also when contracting states fail to treat differently individuals whose situations are significantly different.
For a decade, the European Court had not taken on board the significantly different situation argument submitted by the coalition of NGOs. The European Court’s approach shifted in June 2016, with the decision in Taddeucci and McCall. Undoubtedly, such decision is in line with the strengthening of the doctrine on indirect discrimination highlighted at the beginning of this article. At the same time, the fact that a continuous and persistent pressure from NGOs to frame the lack of legal recognition of same-sex couples as an indirect discrimination on the grounds of sexual orientation played a role in the expansion of the doctrine of indirect discrimination to cover sexual orientation grounds cannot be overlooked.
The decision in Taddeucci and McCall has the potential to improve the life of many LGBT couples everywhere in the CoE states. In fact, before 2016, the rights to form a family for LGBT couples were largely left to the discretion of national states. In states like Italy that used to grant none or very limited rights and benefits to unmarried different sex couples as well, same-sex couples enjoyed none or very limited legal recognition. In other words, in states where some family rights, such as the right to adopt or to access assisted reproductive treatments, were privileges of married different sex couples, the European Court did not find a violation of LGBT people’s human rights when governments excluded same-sex couples from the right to marry and to form a family. With the evolution of the interpretation of Article 14 as also encompassing indirect discrimination on the grounds of sexual orientation, some of the privileges of heterosexual marriage institutions would be progressively chipped away. This is a particularly relevant development, especially considering that it appears clear that the European Court does not wish to change its view on the heteronormativity of the right to marry, yet.
Footnotes
Acknowledgements
The author would like to thank AProf Claire Breen, Dr Jaimie Veale and the reviewers for their comments on the earlier drafts of this article.
Declaration of Conflicting Interests
The author(s) declares no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: The University of Waikato Doctoral Scholarship.