¹ X and Y v. United Kingdom, DR 32 Eur. Comm'n H.R. at 220 (1983).Google Scholar

² Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended by Protocols 11 and 14, hereinafter “ECHR”), June 2010, available at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/ENG_CONV.pdf (last accessed 29^th September 2011). Article 8 of the ECHR states that (1) “Everyone has the right to respect for his private and family life, his home and his correspondence; (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”Google Scholar

³ Rees v. United Kingdom, 106 Eur. Ct. H.R. (ser. A, 1986); ECHR (1959), art. 12, which states that “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”Google Scholar

⁴ I use the phrase “LGBT persons” to refer to lesbian, gay, bisexual and transgendered persons.Google Scholar

⁵ Schalk and Kopf v. Austria, 20120 Eur. Ct. H.R. (2010).Google Scholar

⁶ Id. at para. 61.Google Scholar

⁷ ECHR, art. 14, which states that “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”Google Scholar

⁸ See Schalk, supra note 5, at para. 27. (Note at the time of judgment Slovenia and Iceland only provided for alternative recognition systems.)Google Scholar

⁹ Id. at para. 28. These Member States are: Andorra, Austria, Czech Republic, Denmark, Finland, France, Germany, Hungary, Ireland, Luxembourg, Switzerland and the United Kingdom. (Note at the time of judgment, Iceland and Slovenia provided an alternative registration system, but have now provided for same-sex marriage).Google Scholar

¹⁰ Council of Europe Commissioner for Human Rights, Report: Discrimination on the grounds of sexual orientation and gender identity in Europe 91 (2011).Google Scholar

¹¹ Id. Croatian law does not offer cohabiting same-sex couples the possibility of registration.Google Scholar

¹² It should also be noted that between 2000 and 2010 the Parliamentary Assembly of the Council of Europe also made some significant moves. These included (1) announcing that only states that did not criminally sanction homosexual intercourse would be considered for accession to the Council of Europe (see the following recommendation: Council of Europe, The Parliamentary Assembly of the Council of Europe Situation of Lesbians and Gays in Council of Europe member states [hereinafter “Recommendation 1474”], 1474 Council of Europe Parliamentary Association (2000), at para. 4, which contributed to Europe becoming free of all laws illegalizing consensual, same-sex, adult sexual intercourse in 2003); (2) seeking (unsuccessfully) to have Protocol No. 12 to the ECHR amended to forbid discrimination “by any public authority” on grounds of sexual orientation (Recommendation 1474, at para. 7, available at: http://assembly.coe.int//Main.asp?link=http://assembly.coe.int/Documents/AdoptedText/ta00/eopi216.htm (last accessed: 27 September 2011); and (3) commissioning a report by its Committee on Legal Affairs and Human Rights, which resulted in the Council of Ministers of the Council of Europe adopting a unique recommendation that is aimed solely at combating discrimination on the basis of sexual orientation and gender identity. This recommendation expressly invites Member States to provide same-sex couples with legal means to protect their relationships (see Council of Europe, Recommendation to member states on measures to combat discrimination on grounds of sexual orientation or gender identity [hereinafter “CM/Rec 5”], Committee of Ministers of the Council of Europe (2010), available at: https://wcd.coe.int/wcd/ViewDoc.jsp?id=1606669 (last accessed: 27 September 2011)This recommendation is claimed to be the only instrument of its kind in the world. See the following document: Press Release No. 277, Committee of Ministers of the Council of the Europe, Council of Europe to advance human rights for lesbian, gay, bisexual and transgender persons (Apr. 1, 2010), available at: https://wcd.coe.int/wcd/ViewDoc.jsp?id=1607163&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383 (last accessed: 27 September 2011).Google Scholar

¹³ Karner v. Austria, 2003-IX Eur. Ct. H. R. (2003).Google Scholar

¹⁴ Christine Goodwin v. the United Kingdom, 2002-V1 Eur. Ct. H. R. (2002).Google Scholar

¹⁵ See Schalk, supra note 5, at para. 61.Google Scholar

¹⁶ Id. Google Scholar

¹⁷ See Schalk, supra note 5, at para. 105.Google Scholar

¹⁸ Id. Google Scholar

¹⁹ Note that the travaux préparatoires pertaining to Article 12 of the ECHR are not available.Google Scholar

²⁰ See the ECHR. art. 8, supra note 2.Google Scholar

²¹ The travaux préparatoires contain the various documents that were produced during the drafting of the ECHR and its first Protocol, reports of discussions in the Assembly and its Committee on Legal and Administrative Questions and in the Committee of Ministers and a number of its committees of experts.Google Scholar

²² Council of Europe, Travaux Préparatoires on Article 8 of the European Convention of Human Rights 2-3 (1956), available at: http://www.echr.coe.int/library/DIGDOC/Travaux/ECHRTravaux-ART8-DH(56)12-EN1674980.pdf (last accessed: 27 September 2011).Google Scholar

²³ See the ECHR, art. 14, supra note 7. As Article 14 is not “freestanding,” it cannot be applied unless a case falls with the ambit of one or more of the other substantive convention rights. The substantive rights invoked by marriage and “family life” are contained in Articles 12 and 8 respectively.Google Scholar

²⁴ Council of Europe, Travaux Préparatoires on Article 14 of the European Convention of Human Rights (1967), available at: http://www.echr.coe.int/library/DIGDOC/Travaux/ECHRTravaux-ART14-CDH(67)3-BIL1338901.pdf (last accessed: 27 September 2011).Google Scholar

²⁵ Banković and Others v. Belgium and Others, 2001-XII Eur. Ct. H.R. (2001).Google Scholar

²⁶ Tyrer v. United Kingdom, 26 Eur. Ct. H. R. (ser. A), at para 39 (1978).Google Scholar

²⁷ See Goodwin, supra note 14.Google Scholar

²⁸ See Schalk, supra note 5, at para 61.Google Scholar

²⁹ Mazurek v. France, 2000-II Eur. Ct. H.R., at para. 52 (2000).Google Scholar

³⁰ Emonet and Others v. Switzerland, 2007-XIV Eur. Ct. H. R., at para. 34 (2007). In this case, the ECtHR recognized that de facto “family ties” exist when unmarried opposite-sex partners live together.Google Scholar

³¹ See Schalk, supra note 5.Google Scholar

³² See the ECHR, art. 14, supra note 7.Google Scholar

³³ See Karner, supra note 13. A distinction will only be discriminatory if it has no objective and reasonable justification i.e. if it does not pursue a legitimate aim, or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realized.Google Scholar

³⁴ See Rees, supra note 3.Google Scholar

³⁵ Cossey v. United Kingdom, 184 Eur. Ct. H.R. (ser. A, 1990).Google Scholar

³⁶ Id. at para. 43.Google Scholar

³⁷ Id. at para. 40.Google Scholar

³⁸ Id. at para. 4(4)(3). Dissent of Judge Martens.Google Scholar

³⁹ Id. at para. 4(5)(1). Dissent of Judge Martens.Google Scholar

⁴⁰ See Terry, S, Kogan, Transsexuals, Intersexuals, and Same-Sex Marriage, 18 Brigham Young University Journal of Public Law 371 (2004).Google Scholar

⁴¹ Sheffield and Horsham v. United Kingdom, 1998-V Eur. Ct. H. R. (1998).Google Scholar

⁴² See Goodwin, supra note 14.Google Scholar

⁴³ Id. at para. 98.Google Scholar

⁴⁴ Id. at para. 100.Google Scholar

⁴⁵ Id. at para. 90.Google Scholar

⁴⁶ Id. at para. 91.Google Scholar

⁴⁷ Id. at para. 85.Google Scholar

⁴⁸ See Schalk, supra note 5, at para. 55.Google Scholar

⁴⁹ Id. at paras. 57-58. The ECtHR also pointed out that although the commentary accompanying Article 9 of the European Union's Charter on Fundamental Human Rights [hereinafter “the Charter”] stated that there was no obstacle to recognizing same-sex relationships in the context of marriage, there was also no explicit requirement that domestic laws should facilitate such marriages (id. at para. 60). Nonetheless, it should be noted that the commentary accompanying Article 9 of the Charter also points out that “Article 21 of the Charter, which prohibits discrimination on grounds of sexual orientation, is of special importance with respect to the interpretation of Article 9, and it may be invoked in relation to the exercise of the right to marry. It can be argued that the exclusion of same-sex couples from marriage would constitute discrimination on the basis of sexual orientation in violation of Article 21.” See, EU Network of Independent Experts on Fundamental Rights, Commentary of The Charter of Fundamental Rights of The European Union 102 (2006), available at: .http://www.feantsa.org/files/housing_rights/Instruments_and_mechanisms_relating_to_the_right_to_housing/EU/network_commentary_eucharter.pdf (last accessed: 27 September 2011).Google Scholar

⁵⁰ See Schalk, supra note 5, at para 61.Google Scholar

⁵¹ Koch, Ida Elisabeth & Vedsted-Hansen, Jens, International Human Rights and National Legislature: Conflict or Balance?, 75 Nordic Journal of International Law 3, 11 (2006).Google Scholar

⁵² See Goodwin, supra note 14.Google Scholar

⁵³ Hodson, Loveday, A Marriage by any other Name? Schalk and Kopf v. Austria, 11 Human Rights Law Review (HRLR) 170, 173 (2011).Google Scholar

⁵⁴ See for example, Grigolo, Michele, Sexualities and the ECHR: Introducing The Universal Sexual Legal Subject, 14 European Journal of International Law 1023, 1026, 1027 (2003). (“It is necessary to contest the poles and problematize the binary construction of gender and sexuality. Instead of taking categories such as “sex” or “homosexual” as fixed and given, post-modern “queer” theorists have stressed their artificiality and their role in reproducing a system of domination. Butler has undermined the very naturalness of the category of “sex.” In the realm of sexuality, bisexuals have asserted their own specificity. The emergence of transgenderism and transsexualism as identitarian and political phenomena has demonstrated the apparent paradox of building (fixed) identity upon the impossibility of any (fixed) identity. And it has become clear that sexual borders and roles can themselves be perceived and experienced in different ways along other identitarian axes such as class, ethnicity, nationality, age and disability”).Google Scholar

⁵⁵ See Hodson, supra note 53, at 174. (Hodson agrees the ECtHR will revisit the issue again).Google Scholar

⁵⁶ See Rees, supra note 3.Google Scholar

⁵⁷ See Cossey, supra note 35, at para. 40.Google Scholar

⁵⁸ See Sheffield, supra note 41, at para. 57.Google Scholar

⁵⁹ Id. at para. 60.Google Scholar

⁶⁰ Id. at para. 59.Google Scholar

⁶¹ Id. See also the joint, partly dissenting opinions of Judges Bernhardt, Thór Vilhjálmsson, Spielmann, Palm, Wildhaber, Makarczyk and Voicu.Google Scholar

⁶² Id. Dissenting opinion of Judge Van Dijk, at para. 3Google Scholar

⁶³ See Goodwin, supra note 14, at para. 81.Google Scholar

⁶⁴ Id. at para. 85.Google Scholar

⁶⁵ X v. Ireland, 5 DR 86 Eur. Ct. H. R. (1976). See also Loukis Loucaides, Personality and Privacy under the European Convention on Human Rights, 61 British Yearbook of International Law 175 (1990). Google Scholar

⁶⁶ See X and Y, supra note 1.Google Scholar

⁶⁷ Mata Estevez v. Spain, 2001-VI Eur. Ct. H. R. (2001).Google Scholar

⁶⁸ Id. The English translation of this decision in the Reports of Judgments and Decisions does not include paragraph numbers. The references in this paragraph can be found in the section headed “The Law” under the sub-heading of “Article 14.”Google Scholar

⁶⁹ Simpson v. United Kingdom, DR 47 Eur. Comm'n H. R., at 274 (1986) .Google Scholar

⁷⁰ Id. at para. 3.Google Scholar

⁷¹ Id. at para.7.Google Scholar

⁷² Johnson, Paul, An Essentially Private Manifestation of Human Personality: Constructions of Homosexuality in the European Court of Human Rights, 10 HRLR 67, 78 (2010).Google Scholar

⁷³ See Karner, supra note 13.Google Scholar

⁷⁴ Id. at para. 41.Google Scholar

⁷⁵ Mark JANIS, Richard Kay & Anthony Bradley, European Human Rights Law: Texts and Materials 404 (2008).Google Scholar

⁷⁶ Wintemute, Robert, From ‘Sex Rights’ to ‘Love Rights’: Partnership Rights as Human Right, in Sex Rights: The Oxford Amnesty Lectures 2002 (Nicholas Bamforth, ed. 2005).Google Scholar

⁷⁷ Burden v. United Kingdom, Eur. Ct. H. R. (2008), available at: http://cmiskp.echr.coe.int/tkp197/view.asp?item=2&portal=hbkm&action=html&highlight=burden%20%7C%20United%20%7C%20Kingdom&sessionid=79332797&skin=hudoc-en (last accessed: 27 September 2011).Google Scholar

⁷⁸ ECHR, art. 1, prot. 1, states that: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” The terms of Article 1 indicate that it only applies to acquired property rights i.e., those an individual already possesses, and does not guarantee a person a right to acquire property.Google Scholar

⁷⁹ See Burden, supra note 77, at para. 62.Google Scholar

⁸⁰ Id. Dissent of Judge Zupančič.Google Scholar

⁸¹ Id. Google Scholar

⁸² Id. Google Scholar

⁸³ Savill, Richard, Sisters lose inheritance tax battle – Elderly pair wanted same rights as gay couples, The Daily Telegraph, Apr. 30, 2008, available at: http://www.dailymail.co.uk/news/article-1017502/Elderly-sisters-lose-fight-death-tax-parity-gays.html (last accessed: 27 September 2011).Google Scholar

⁸⁴ Korelc v. Slovenia, 28456 Eur. Ct. H. R. 3 (sect. 3, 2009).Google Scholar

⁸⁵ Id. at paras. 90-92.Google Scholar

⁸⁶ Courten v. United Kingdom, 4479 Eur. Ct. H. R. 6 (2008).Google Scholar

⁸⁷ Kozak v. Poland, 13102 Eur. Ct. H. R. (sect. 4, 2010).Google Scholar

⁸⁸ Id. at para. 98.Google Scholar

⁸⁹ See Schalk, supra note 5, at para. 94.Google Scholar

⁹⁰ Id. at para 99.Google Scholar

⁹¹ Id. at para. 105.Google Scholar

⁹² Id. at para. 105.Google Scholar

⁹³ Id. at para. 96.Google Scholar

⁹⁴ Id. Dissent of Judges Rozakis, Spielmann and Jebens, at para 4.Google Scholar

⁹⁵ Id. Google Scholar

⁹⁶ Arguably this situation is reflective of that which resulted from the ECtHR's decisions in Rees, Cossey and Sheffield with regards to Article 12. Those decisions essentially endorsed a state system that provided medical and momentary resources for transsexuals to transition to their preferred gender, but then refused to legally recognize that new gender when the transition was complete.Google Scholar

⁹⁷ See Hodson, supra note 53, at 175.Google Scholar

⁹⁸ See Letsas, George, Two concepts of the margin of appreciation, Oxford Journal of Legal Studies 705, 722 (2006).Google Scholar

⁹⁹ See Schalk, supra note 5, at para 61.Google Scholar

¹⁰⁰ See Schalk, supra note 5.Google Scholar

¹⁰¹ See Karner, supra note 13.Google Scholar

¹⁰² See Schalk, supra note 5, at para. 105Google Scholar

¹⁰³ Id. Google Scholar

¹⁰⁴ See Hodson, supra note 53, at 177.Google Scholar