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Age of consent
During its work, the European Commission and Court of Human Rights examined many applications from lesbian, gay, bisexual and transgender people from all over Europe.
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In cases concerning the individual rights of lesbian, gay, bisexual and transgender people the Court has been more progressive and made a significant impact on the legal situation for lesbian, gay, bisexual and transgender people in Europe. At the same time, in terms of rights for same-sex partners, the Court took a less progressive and proactive approach, leaving these issues to the discretion of individual states'.
Ban on consensual sex between adult men
In the early years of the European Commission and Court of Human Rights, gay men were already challenging the legislation banning consensual sex between adult men. At that time the Commission rejected all these applications and stated that such legislation did not breach the European Convention on Human Rights.
Age of consent
Similarly, in the early days of its work, the European Commission on Human Rights rejected applications from gay men who were challenging the higher age of consent for gay men. The Commission changed its stance in the case of Sutherland v UK (1996) where the Commission found that the higher age of consent for gay men was discriminatory and violated a right to a private life. This case was supported by Stonewall and resulted in an equal age of consent in the UK. The European Court of Human Rights confirmed that the higher age of consent for gay men was discriminatory and in breach of the European Convention on Human Rights in two more recent judgements, L. and V. v Austria (2003) and S.L. v Austria (2003).
In the case of Laskey, Jaggard and Brown v UK (1995), the European Court of Human Rights unanimously decided that consenting sadomasochistic sexual activities between adult men were not protected by Article 8 of the Convention which guarantees a right to private life. In this case, a group of gay men were imprisoned after the police discovered video tapes featuring these men engaging in consensual sadomasochistic acts in private. Although the Court agreed that there was an interference with their private lives, the Court justified such interference in order to protect ‘morals and health.’
In a series of cases, the European Court of Human Rights declared that discharging lesbians, gay men and bisexuals from the military forces because of their sexuality violated Article 8 of the Convention – the right to a private life. The cases were Lustig-Prean and Beckett v UK (1999), Smith and Grady v UK (1999), Perkin and R v UK (2002) and Beck, Copp and Bazeley v UK (2002). In all cases the applicants had been serving in the military forces and were discharged after the military authorities conducted investigations which confirmed that the applicants were homosexuals.
In 2002, following several unsuccessful challenges to the current UK law, the European Court of Human Rights ruled favourably in the cases of Goodwin and "I" v. UK (2002). Christine Goodwin and "I" are two trans women who claimed that the current UK law breached article 8 of the ECHR, the right to respect for private life. They argued that they had been discriminated against on the grounds of their transsexual status in a number of areas, including employment, social security and pensions, and that their right to marry under article 12 had been breached because they could not marry as women.
In the case of Salgueiro Da Silva Mouta v Portugal (1999), the Court declared that refusing child custody to a gay man simply because of his homosexuality was in breach of Article 8 of the Convention, the right to a private life. It was declared discrimination on the grounds of sexual orientation and violated Article 14 of the Convention which prohibits discrimination. In this case, after divorcing his wife, Mr Mouta was granted access to his child. However, his former wife did not comply with the agreement and did not allow Mr Mouta to visit their child. During the court battles in Portugal, Mr Mouta lost his case and child custody was granted to his former wife. The reason given to justify refusing him child custody was his homosexuality and cohabitation with another man.
The case of Frette v France (2002) dealt with the issue of adoption by a gay man. Mr Frette applied to adopt a child but the courts in France decided that adoption by a gay man could ‘pose substantial risks to the child’s development’. Mr Frette complained to the European Court of Human Rights claiming that refusal to allow him to adopt a child was in breach of Article 8 of the Convention and was based exclusively on discrimination because of his sexual orientation. The Court did not find a violation of the Convention in this case and refused Mr Frette the right to adopt, using the argument that by allowing Mr Frette to adopt, the child's best interests would be harmed because the child would be ‘brought up by a homosexual and deprived of dual maternal and paternal role models.’ Some of the judges disagreed with the majority and said that ‘when all the countries of the Council of Europe are engaged in a determined attempt to counter all forms of prejudice and discrimination, we regret that we cannot agree with the majority’.
Rights of same-sex partners
Until July 2003, the European Court of Human Rights has not declared unequal treatment of same-sex partners compared to married or cohabiting opposite sex partners as violating the Convention. The Court rejected the idea that same-sex couples constitute a family and allowed countries to treat same-sex couples less favourably than opposite sex couples. However, the situation changed with the 2003 Court’s decision in Karner v Austria.
Where to find these decisions and judgements
All decisions and judgments of the European Commission and the European Court of Human Rights can be found on the Court website:
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