Switzerland has highest proportion of people not identifying as male or female

USA: Federal judge declares Tennessee’s anti-drag bill unconstitutional

Judge Thomas Parker, a judge for the United States District Court for the Western District of Tennessee, Friday ruled that Tennessee’s Adult Entertainment Act (AEA) is unconstitutional. In his opinion, Parker ruled that the AEA violates First Amendment rights. He stated that free speech does not extend to just words. Instead, the fundamental right covers an individual’s ability “to express one’s identity, and to realize self-fulfillment in a free society.”

The court analyzed the AEA using strict scrutiny, the most demanding standard of judicial review. Any law or policy that infringes on a fundamental right must pass strict scrutiny. The review requires that the challenged law supports a compelling governmental interest. The law must also be narrowly tailored to be as least restrictive as possible. Parker stated that while Tennessee has a compelling state interest in protecting the “physical and psychological well-being” of minors, the language of the AEA is “unconstitutionally vague and substantially overbroad.”

Parker took special exception to the AEA’s wording restricting the locations where performances are allowed. The statute criminalizes performances on public land or in a location in which the performance “could be viewed by a person who is not an adult.” The court ruled that since minors can be anywhere, the practical effect of the language was to criminalize performances in almost every space in the state.

Additionally, while the law does not expressly mention drag, “male or female impersonators” are. Parker criticized the legislature’s decision to classify a diverse group of performers in the same category as strippers and topless dancers. After detailing some past and recent legal and political struggles in the LGBTQ+ community, he stated, “this Court views categorizing ‘male or female impersonators’ as ‘similar entertainers’ in ‘adult-oriented businesses’ with skepticism.”

Parker previously enjoined the AEA in April. The District Attorney and Tennessee Attorney General’s Office have not yet commented on the ruling.

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A Japanese district court held Tuesday the government’s failure to recognize same-sex marriage is unconstitutional

A Japanese district court held Tuesday the government’s failure to recognize same-sex marriage is unconstitutional. Marriage for All Japan, a Japanese organization fighting for marriage equality, shared the Nagoya District Court in Japan’s opinion in a tweet.

Article 24 of the Japanese Constitution states that “[m]arriage shall be based only on the mutual consent of both sexes,” which some have previously interpreted to mean that only a man and woman are able to marry. However, the court found that the second paragraph of Article 24 ensures equality among all people, including the choice of spouse. The court explained that because the government does not provide an equivalent framework for same-sex couples to have their marriages recognized, it also violates Article 14’s guarantee of equality under the law.

As of January 2023, only 65 percent of local governments in Japan offer some form of recognition for same-sex partnerships. Tuesday’s decision prompted a push for residents to encourage their lawmakers to support the national recognition of same-sex marriage.

Japan has a fraught history with LGBTQ+ rights, lagging behind many other countries. For example, the first time the country recognized a same-sex foster couple was in 2017.

Around the world, LGBTQ+ rights continue to face pushback. Most recently, on Monday, Ugandan President Yoweri Museveni signed the Anti-Homosexuality Act 2023 into law, criminalizing homosexuality.

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Repost: A Win for LGBT Rights in Namibia

(c) Mahima Balaji, at: https://verfassungsblog.de/a-win-for-lgbt-rights-in-namibia/

In the recent case of Digashu and Seiler-Lilles the Namibian Supreme Court was confronted with the interpretation of Section 2(1)(c) of the Immigration Control Act, 1993 (“ICA”). Specifically, the Court was asked to consider whether the term ‘spouse’ extended to same-sex couples lawfully married in foreign jurisdictions, for the purposes of immigration and citizenship rights in Namibia. In a welcome turn of events, the Court found that denying the recognition of same-sex spouses under the ICA was not only a violation of the right to dignity under the Namibian Constitution, but also amounted to unfair discrimination.

The judgement is a win for the rights of LGBTQIA+ persons in a jurisdiction where they remain mostly unrecognized. Instruments such as the Criminal Procedure Act, 2004 allow for arrest without warrant of any person reasonably suspected of having committed sodomy (Ss. 43 and 44, read with Schedule I). Similarly, the Combating of Immoral Practices Act, 1980 has been used to sanitise public spaces from “immoral acts,” which itself is undefined by the Act. However, the term ‘any person’ under Sections 7 and 8 have been susceptible to harmful interpretations that persecute intimate relationships of persons of the same sex. It is in this context that the Namibian Supreme Court’s interpretation of the ICA must be read, and, in this post, I highlight some key take aways from the judgement that underscore why it is an important step in the right direction in its engagement with dignity and anti-discrimination law for LGBTQIA+ persons.

Untethering the Precedent of Frank

First, the Court was confronted with the precedent of Immigration Selection Board v Frank (“Frank”), and whether it was bound by this case. Frank was a Supreme Court judgement that pre-dated the present case and it had reasoned that ‘marriage’ contemplated by the Namibian Constitution meant marriage between men and women only (p. 117). Consequently, homosexual relationships were automatically rendered subservient to heterosexual relationships. The High Court a quo in Digashu considered itself to be bound by Frank, which meant that spouses in same-sex marriages were excluded from Section 2 of the ICA which allowed the authorities to refuse to recognise the parties’ respective spouses.

In quite a progressive turn, the majority before the Supreme Court, however, chose to distinguish the present case from Frank on two fronts.  The first was factual as the applicants in Frank were same-sex partners committed in a long-term relationship, however, they had not concluded a lawful marriage in a foreign jurisdiction [81]. Hence, marriage when validly contracted itself had certain legal incidents that the Court in the present case was willing to protect. Second, the judges principally distinguished between the ratio decidendi and obiter dicta ­(that is, the primary versus subsidiary reasons) in Frank. It was reasoned that Frank’s case rested on a finding of whether Article 18 rights had been breached under the Constitution. This was an administrative question that dealt with fairness and reasonableness of the administrative bodies. Consequently, the majority’s view concerning the recognition of same-sex relationships by the law, and when the same amounted to a universal partnership, remained subsidiary to the determination of the matter (i.e., it was merely obiter) [78]. This allowed the Court to side-step the judicial remarks in Frank where it was stated that Article 4(3) of the Namibian Constitution only contemplated heterosexual marriages (p. 116). This allowed the Court to separate the administrative question in the earlier case from the determination of the lawfulness of same-sex marriages and whether Namibian authorities were bound to recognise them.

Comparativism as a Deliberative Resource

Significant portions of the judgement appear to rely on comparativism as a deliberative resource, while delineating Namibia’s unique constitutional path. It reflects a growing tendency amongst Namibian Courts to deploy a comparative approach when deciding critical constitutional questions. In Jaco Kennedy, for example, the Windhoek High Court considered the jurisprudence on Articles 14 and 15 of the Indian Constitution, whose provisions are in pari materia to the Namibian Constitution [41]. This was used to bolster the anti-discrimination analysis concerning the rights of undertrial prisoners. Recent examples also include the case of Gustavo before the Supreme Court, where Smuts J turned to cases from the South African Constitutional Court to highlight the intimate link between corruption and the rule of law [80].

In a similar vein, in the present case of Digashu, both the majority as well as the dissent use comparativism as a tool to legitimise their reasoning in different ways. Thus, the majority follows the general principle of common law that if a marriage is duly concluded in accordance with the statutory requirements in a foreign jurisdiction, it has be recognised in Namibia. For this, the Court’s relied on developments in the US, the European Court of Human Rights (“ECtHR”) and South Africa, which included a consideration of equal protection clauses being applicable to protect the rights of same sex partners. In this context, the Court concluded that there were no statutory bars relating to marriage (neither were objections such as grounds of public policy raised) which would preclude the operation of the common law principle [89]. After considering the jurisdictional developments which rooted concerns of dignity, equality, and freedom at the core of recognising same-sex marriages, the majority was able to identify a sound basis for the same being protected in Namibia.

Interestingly, the significance of comparativism for the purpose of judicial reasoning is also seen in the contrast between the doctrines adopted by the majority opinion and the dissenting judgement of Mainga J. Both consider the propriety of judicial interference in the sphere of recognition of same-sex relationships. While Mainga J appears to favour judicial deference to the legislature and relies on doctrines such as the margin of appreciation in the ECtHR to support his reasoning [176, 181,  Mainga J, dissenting], the majority instead considered the doctrine of the separation of powers for the purposes of protecting fundamental rights [103]. It then turned to the South African Constitutional Court’s case of Dawood, and confirmed the approach adopted by O’Regan J, who held that legislation violating the rights of individuals to enter and sustain permanent intimate relationships infringes their dignity [107]. This approach cemented the Supreme Court’s interpretation of the term ‘spouse’ in the context of same-sex partners. Specifically, where there is a valid marriage, the right to dignity would be infringed upon where the ICA is interpreted in a manner that failed to recognise such a relationship, impairing the ability of spouses to honour their obligations to one another [108].

The use of comparativism by the Namibian Supreme Court in Digashu is evidence of an increasing degree of cross-fertilisation of concepts (or ‘doctrine-swapping’) in the field of anti-discrimination law whereby some jurisdictions export, while others import (oftentimes with modifications), various concepts in anti-discrimination law (see here). For example, the very concept of indirect discrimination began with the expression in the US case of Griggs, however, with time, it has found presence several other jurisdictions like India (Nishita v UOI), the ECtHR (DH v Czech), and South Africa (MEC v Pillay). In this context, this inter-jurisdictional conversation arguably allows judges to construct ‘better’ judgements by bolstering the legitimacy of their reasoning. Importantly, it does not involve blind deference, but rather involves a discussion to understand how varied approaches can be considered to best address pressing controversies in anti-discrimination law (more here). Particularly, the adoption of comparativism by both the majority and the dissent in Digashu showcases this very conversation. It allowed them to consider the development of ‘rights’ concerning same-sex partners, and how other jurisdictions have offered recognition and protection despite textual limitations.

On Equality and Dignity

Finally, the Court’s analysis under Articles 8 and 10 of the Namibian Constitution, dealing with dignity and equality, is significant for adopting an effects-based test to assess the ICA’s infringement on these constitutionally protected rights. This contrasts with considering an ‘intention’ approach where, to make out a case of disparate treatment, a plaintiff must establish discriminatory intent on part of the perpetrator (for example, Washington v Davis). By focusing on effect, the majority’s analysis placed dignity at the core of protecting the rights of same-sex couples. Importantly, the reasoning also appears to confirm the right to dignity under Article 8 as an absolute right under the Namibian Constitution, as opposed to being either a relative right or a principle.

This effectively means that where there is a clash of claims and where a hierarchical order between dignity and other rights is established, dignity remains at the top of the hierarchy (more here). Interestingly, the majority firmly adopting this approach also confirms the textual mandate of Article 8(1) which maintains dignity as ‘inviolable’, and the Preamble recognising the “inherent dignity (…) of all members of the human family.” In this context, the Court assessed the impact of the differentiation between the way non-citizen spouses in a heterosexual marriage were treated in contrast to those in a same-sex marriage. The Court reasoned that the unfairness of discrimination was to be determined “with reference to the impact upon the victim(s) discriminated against, the purpose sought to be achieved by the discrimination, the position of the victim(s) in society, [and] the extent to which their rights and interests have been affected and their dignity impaired.” [122].

It is important to note that the term ‘spouse’ is undefined in Section 2 of the ICA, and the differentiation was thus seen to have led to a “profound impairment of (…) dignity at a deeply intimate level of their human existence” [123]. Hence, the use of the frameworks of dignity and equality in this context allowed the Court to identify a legal hook for considering an anti-discrimination analysis in the absence of a protected ground (i.e., sexual orientation). Identifying dignitary harm was critical as it was sufficient that the effect of the ICA’s exclusion of certain spouses ran counter to the Constitution’s guarantees by unfairly discriminating against a class of persons, irrespective of whether such class has explicit mention under a protected ground of discrimination. It is important to mention that the legal conception of dignity is often born out of the socio-political and legal pasts of various regimes, including drawing its core from historical experiences of totalitarian systems (here). The use of this legal hook in the present case demonstrates the willingness of the Court to consider the inviolability of dignity, irrespective of the textual limitations in the equality clause. For anti-discrimination cases to come, it would be interesting to see the Court’s analysis with respect to recognising and protecting persecuted minorities, and whether dignitary harm is at the core of such analyses.

Conclusion

It is important to emphasize that the judgement only dealt with the narrow issue of the recognition of same-sex spouses under the ICA where the parties conclude their marriages in foreign jurisdictions. As such, it did not define the contours of constitutional protection that may apply to same-sex marriages more generally, nor did it speak to the validity of these being concluded within the territory of Namibia [134]. Nevertheless, the Namibian Supreme Court’s recognition of same-sex marriages contracted abroad is still a novel development, particularly given that Namibia still carries the legacy of the anti-sodomy law inherited from South Africa in 1920. Hence, the majority emphatically concluding that same-sex couples are to be accorded “the same degree of dignity, concern and respect that is shown to heterosexual couples” [132] is indeed a welcome change, and hopefully sets the tone for further developments that both recognise and better protect the rights of same-sex couples in the region.

Source: https://verfassungsblog.de/a-win-for-lgbt-rights-in-namibia/

USA: Iowa governor signs bill limiting gender identity and sexual orientation instruction in school

Iowa Governor Kim Reynolds signed a bill into law on Friday that limits educational instruction related to sexual orientation and gender identity for students through sixth grade.

Senate File 496 focuses on education in Iowa, restricting the topics teachers may speak about, as well as removing all books that include “depictions of a sex act” from schools. Specifically, the bill prescribes standards for addressing LGBTQ+ topics, requiring they be handled in an “age-appropriate” manner for children. Finally, the bill requires a school administrator to contact a child’s parent if they wish to use a new pronoun. There are concerns that this forced outing of students that may identify as nonbinary or transgender could lead to rejection from their parents or guardians, fueling negative mental health outcomes.

Reynolds signed a slew of other education bills on Friday, ranging from updating requirements for mandatory reporters to procedures regulating school improvement plans.  Of the legislation, she said:

This legislative session, we secured transformational education reform that puts parents in the driver’s seat, eliminates burdensome regulations on public schools, and empowers teachers to prepare our kids for their future. Education is a great equalizer and everyone involved – parents, educators, our children – deserves an environment where they can thrive.

Iowa is just the latest state to limit LGBTQ+ topics. Alabama’s House recently advanced a bill that would define biological sex, eliminating recognition of transgender identities. Additionally, the American Library Association found that school book bans target literature containing LGBTQ+ and minority characters, limiting children’s exposure to these identities.

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Uganda president signs anti-LGBTQIA+ law that includes death penalty

President of Uganda Yoweri Museveni signed the controversial Anti-Homosexuality Act 2023 into law Monday. The law authorizes the death penalty for “aggravated homosexuality,”  which includes same-sex relations with a vulnerable person, a person under 18, or when the actor is HIV positive. The bill also sets a term of life in prison for anyone convicted of “homosexuality,” which constitutes all other same-sex relations.

The bill was originally passed by the Ugandan Parliament in March, but Museveni refused to sign the bill, sending it back to parliament with requested changes. Parliament then passed an updated version, with Museveni’s changes, refining the bill’s focus to target those who engage in or “promote” same-sex relations.

The bill has faced condemnation from political leaders across the globe. UK Minister of State for Africa Andrew Mitchell expressed concern over the bill saying, “Democracy depends on the guarantee of equal rights under law and freedom from discrimination for everyone in society. This legislation undermines the protections and freedoms of all Ugandans enshrined in the Ugandan Constitution.”

US President Joe Biden also condemned the bill, stating:

The enactment of Uganda’s Anti-Homosexuality Act is a tragic violation of universal human rights—one that is not worthy of the Ugandan people, and one that jeopardizes the prospects of critical economic growth for the entire country…This shameful Act is the latest development in an alarming trend of human rights abuses and corruption in Uganda. 

Biden went on to state that his administration would review several aid programs that benefit Uganda and consider potential sanctions. The United Nations Human Rights Office also condemned the law, warning, “It is a recipe for systematic violations of the rights of LGBT people & the wider population.”

Arthur Kamiya, a Ugandan LGBTQIA+ activist residing in Britain, called on businesses to stand with LGBTQIA+ Ugandans, stating, “…big business has obligations to ensure gay lives are protected and should be putting their economic investment on the table as leverage.”

The Speaker of the Ugandan Parliament Anita Annet Among defended the law, saying, “As Parliament of Uganda, we have heeded the concerns [of] our people and legislated to protect the sanctity of family.”

According to the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), across the African continent, only 22 of 54 countries have legalized homosexuality. Mauritania and Somalia allow the death penalty for same-sex sexual acts.

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USA: Alabama legislature advances bill defining biological sex

European Court of Human Rights (ECHR) found Tuesday that Romania violated the European Convention on Human Rights article 8’s right to respect for private and family life because of the “absence of any form of legal recognition and protection for same-sex couples.”

The case, Buhuceanu and Others v. Romania arose when Romania rejected the application of 21 same-sex Romanian couples’ request to marry. Under current Romanian law, marriage is only recognized between a man and a woman. Under article 277 section 1 of Romania’s Civil Code, “[s]ame-sex marriage is prohibited.” The couples then filed suit to the court, arguing that Romania’s laws violated their right to respect for their private and family lives and amounted to “discrimination against them on the grounds of their sexual orientation.”

The judgement–which was decided 5 to 2 in favor of the applicants–found that there had been a violation of article 8 of the European Convention on Human Rights by Romania. Article 8 states that “[e]veryone has the right to respect for his private and family life” and that there can be “no interference by a public authority with the exercise of this right except” under narrow considerations.

In its submission, Romania’s government argued that, because majority of the Romanian population are against same-sex unions, to recognize same-sex relationships as legal would be against public interest. It was further submitted that Romanian courts had not yet determined if same-sex couples benefitted from having legally recognized unions, which was contrary to the ECHR’s decision in the case of Oliari and Others v. Italy. That decision found that allowing same-sex unions does not stop opposite-sex marriages from legal recognition. Therefore, there is no legal justification relating to public interest for the absence of legal recognition for same-sex unions.

The court found that Romania’s government’s submissions to the court on grounds of public interest did not prevail “over the applicants’ interest in having their respective relationships adequately recognised and protected by law.

While the standard for non-punitive damages was met, the court did not name an amount. The applicants’ claims for punitive damages were rejected.

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Pakistani trans activists to appeal Sharia court ruling

Transgender activists in Pakistan plan to appeal to the highest court against an Islamic court that overturned the country’s 2018 laws protecting transgender rights such as legal gender recognition.

More: https://www.dw.com/en/pakistani-trans-activists-to-appeal-sharia-court-ruling/a-65687320

Pan Europe Rainbow Chinese Summer Camp 2023

ECtHR: Romania’s failure to provide any legal recognition of same-sex relationships
violates Article 8 ECHR

Very different dissenting opinions:

PARTLY DISSENTING OPINION OF JUDGE GUERRA MARTINS

1.  I fully agree that there has been a violation of Article 8 of the Convention in the present case.

2.  However, for the reasons set out below I cannot join the majority in concluding, with extremely succinct reasoning, that there is no need to examine the complaint under Article 14 of the Convention taken in conjunction with Article 8, based on § 230 of the judgment in Fedotova and Others ([GC], nos. 40792/10 and 2 others, 17 January 2023).

3.  First and foremost, I firmly believe that discrimination on the ground of sexual orientation is a fundamental aspect of this case and that it should therefore have been addressed.

4.  Secondly, I am fully aware that Fedotova and Others is a judgment of the Grand Chamber, which gives it a certain supremacy over the judgments of the Chambers. In fact, although neither the Convention nor the Rules of Court contain an express provision granting priority to those judgments (indeed, the system of stare decisis is not applicable to the Convention), one can accept that there is a broad consensus in so far as the Convention and the Rules of Court implicitly presuppose that the judgments of the Grand Chamber are to be followed by the Chambers until they are reversed by the Grand Chamber.

5.  Thirdly, that said, it is worth noting that I have already had the opportunity to respectfully disagree with what I consider to be the Court’s restrictive interpretation of Article 14 of the Convention (see, recently, the partly dissenting opinion of Judges Yudkivska, Lubarda, Guerra Martins and Zünd joined by Judge Kūris, in the case of Macatė v. Lithuania (no. 61435/19, 23 January 2023). It is true that the factual situation in the two cases is different, but the rationale behind the finding of no violation of Article 14 in conjunction with Article 10 in Macatė reflects the same restrictive approach to Article 14 as in the present case.

6.  In that opinion we argued precisely that anti-discrimination law has evolved in the past few decades, especially in Europe, and that as a result the Court must adapt its reasoning to the new trends.

7.  Finally, the finding of no violation of Article 14 in Fedotova and Others was not unanimous. Judge Pavli, joined by Judge Motoc, added a partly dissenting opinion whose reasoning, in my humble view, is more accurate than the reasoning of the majority. Therefore, without further explanation, I would say that had I been part of the composition of the Court in Fedotova and Others I would have joined the partly dissenting opinion of my colleagues. Consequently, I cannot accept the finding of no violation of Article 14 in the current case based on Fedotova and Others without expressing my opinion.

8.  Although this does not change anything in the current case, it might pave the way for the future evolution of the Court’s case-law regarding Article 14 of the Convention.

JOINT DISSENTING OPINION OF JUDGES WOJTYCZEK AND HARUTYUNYAN

1.  We respectfully disagree with the view that the instant applications are admissible and that Article 8 has been violated.

2.  The Court has consistently held that Article 34 does not allow complaints in abstracto alleging a violation of the Convention. The applicants have to show that they are personally affected by the contested legislation (see, for instance, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 101, ECHR 2014).

In the instant case, the applicants pointed to a certain number of shortcomings of the national legislation in several domains. However, in our view, they did not provide sufficient evidence that those shortcomings had affected them personally and, in any event, they did not bring their complaints to the attention of the relevant authorities (with the exception of the proceedings mentioned in paragraph 6). The grievances as formulated by the applicants are reflected in the very concise factual findings. The majority decided to follow the approach of the applicants and to review the applicable legislation in abstracto without looking at the practical difficulties the applicants had actually encountered.

3.  The majority rely on the judgment in the case of Fedotova and Others v. Russia ([GC], nos. 40792/10 and 2 others, 17 January 2023), and refer to it throughout the reasoning. That judgment was rendered in very specific factual circumstances which are characterised by the following three features, as set out in that judgment:

(i)  “The present case concerns the absence in Russian law of any possibility of legal recognition for same-sex couples, regardless of the form such recognition may take” (§ 155, emphasis added).

(ii)  “Nor is it disputed that Russian law has not changed at all since the present applications were lodged …” (§ 193, emphasis added).

(iii)  “The Court notes that the respondent State did not inform it of any intention to amend its domestic law in order to allow same-sex couples to enjoy official recognition and a legal regime offering protection” (§ 194, emphasis added).

4.  The instant case differs from the case of Fedotova and Others v. Russia on all these three counts.

(i)  As explained by the Government, Romanian law provides for some forms of recognition of same-sex couples and protection for them. The majority note in particular the following developments in this regard:

“In this context, the Court takes note of the adoption by Romania of more inclusive legal provisions of a general nature such as Article 1391 of the Civil Code (see paragraph 9 above) and the legislation sanctioning all forms of discrimination (see paragraph 10 above) and of the broader interpretation given by the Constitutional Court to the notion of family life set forth by Article 26 of the Constitution (see paragraphs 15 and 16 above)” (paragraph 77).

We note in this context that the Constitution, as interpreted by the Constitutional Court, protects same-sex couples. Some specific legislative provisions set forth this protection. In particular, Article 1391 of the Civil Code is interpreted as a form of recognition of same-sex couples for specific purposes. Furthermore, European Union law recognises same-sex couples and grants them a series of rights. European Union law is a part of Romanian domestic law and is directly applicable in Romania. In any event, it would have been necessary to carry out a thorough analysis of the domestic law, domain by domain, in order to determine with sufficient precision the legal status of same-sex couples. We also note en passant that in Romania the number of unmarried different-sex couples is growing, which shows that the legal regime provided to unmarried couples does not appear unattractive.

(ii)  The domestic law is changing. The above-mentioned elements have been adopted recently and we note that the case-law, in particular, is expanding the scope of protection provided to non-married couples, whether they are of the same or different sex.

(iii)  The Government have expressed their willingness to amend the legislation.

5.  In the case of Fedotova and Others (cited above), the Court explained the scope of States’ obligations in respect of same-sex couples in the following terms (emphasis added):

“188.  Nevertheless, as is already apparent from the Court’s case-law (see Schalk and Kopf, § 108; Gas and Dubois, § 66; Oliari and Others, § 177; and Chapin and Charpentier, § 48, all cited above), the States Parties have a more extensive margin of appreciation in determining the exact nature of the legal regime to be made available to same-sex couples, which does not necessarily have to take the form of marriage (see paragraph 165 above). Indeed, States have the ‘choice of the means’ to be used in discharging their positive obligations inherent in Article 8 of the Convention (see Marckx, cited above, § 53). The discretion afforded to States in this respect relates both to the form of recognition and to the content of the protection to be granted to same-sex couples.

189.  The Court observes in this connection that while a clear ongoing trend is emerging towards legal recognition and protection for same-sex couples, no similar consensus can be found as to the form of such recognition and the content of such protection. Thus, in accordance with the principle of subsidiarity underpinning the Convention, it is above all for the Contracting States to decide on the measures necessary to secure the Convention rights to everyone within their ‘jurisdiction’, and it is not for the Court itself to determine the legal regime to be accorded to same-sex couples (see Christine Goodwin, § 85, and Marckx, § 58, both cited above).”

6.  We note that in the judgment in the case of Fedotova and Others (cited above), the Court, unlike for different-sex couples, leaves a very broad freedom to the States in defining the legal regime for same-sex couples. The underlying idea was to allow the States to adapt their legislation step‑by‑step and domain by domain rather than in a single revolutionary move which might trigger strong opposition and ultimately prove counter-productive. We observe that the Council of Europe expressed the view that while “a considerable number of member states have made substantial progress regarding the legal and social recognition of LGBT persons, albeit often in a challenging context”, “a climate of opposition to LGBT human rights has simultaneously gained ground in certain European countries” (see the CDDH Report on the implementation of Recommendation CM/Rec(2010)5 of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity, adopted by the CDDH at its 92nd meeting (26‑29 November 2019), paragraphs 11‑12).

7.  It is important to note that the judgment in the case of Fedotova and Others (cited above) does not equate legal recognition with registration. States may choose among several possible means of granting legal recognition to same-sex couples. They may either create the possibility for same‑sex couples to register their union (recognition by registration) or grant recognition ex lege in different branches of the law, so that such couples acquire ex lege certain specific rights and obtain their protection (recognition ex lege). What is important – under the approach adopted in Fedotova and Others (cited above) – is that rights and protection are granted ex lege, without the necessity to apply to the domestic courts for protection, so that the couples can rely upon the mere existence of their relationship in dealings with the judicial or administrative authorities (see Fedotova and Others, cited above § 203). The advantage of this second method is that rights are automatically granted to all cohabiting couples and are not restricted to those who choose to register. At the same time, it should be noted that registration does not confer per se broader or stronger rights.

8.  The majority make the following assessment in paragraph 76 of the judgment:

“The Court observes that Romanian law provides for only one form of family union – an opposite-sex marriage and does not provide for legal recognition for same-sex couples (see paragraph 9 above).”

In our view, for the reasons explained above, not only does Romanian law provide for some forms of recognition for same-sex couples, but the scope of this recognition is also expanding.

9.  To sum up, as rightly stated in Fedotova and Others (cited above, § 189):

“…it is above all for the Contracting States to decide on the measures necessary to secure the Convention rights to everyone within their ‘jurisdiction’, and it is not for the Court itself to determine the legal regime to be accorded to same-sex couples …”

For all these reasons, we consider that the respondent State has not violated its obligations under the Convention.

__________________________________________________________

Summary:

European Court of Human Rights (ECHR) found Tuesday that Romania violated the European Convention on Human Rights article 8’s right to respect for private and family life because of the “absence of any form of legal recognition and protection for same-sex couples.”

The case, Buhuceanu and Others v. Romania arose when Romania rejected the application of 21 same-sex Romanian couples’ request to marry. Under current Romanian law, marriage is only recognized between a man and a woman. Under article 277 section 1 of Romania’s Civil Code, “[s]ame-sex marriage is prohibited.” The couples then filed suit to the court, arguing that Romania’s laws violated their right to respect for their private and family lives and amounted to “discrimination against them on the grounds of their sexual orientation.”

The judgement–which was decided 5 to 2 in favor of the applicants–found that there had been a violation of article 8 of the European Convention on Human Rights by Romania. Article 8 states that “[e]veryone has the right to respect for his private and family life” and that there can be “no interference by a public authority with the exercise of this right except” under narrow considerations.

In its submission, Romania’s government argued that, because majority of the Romanian population are against same-sex unions, to recognize same-sex relationships as legal would be against public interest. It was further submitted that Romanian courts had not yet determined if same-sex couples benefitted from having legally recognized unions, which was contrary to the ECHR’s decision in the case of Oliari and Others v. Italy. That decision found that allowing same-sex unions does not stop opposite-sex marriages from legal recognition. Therefore, there is no legal justification relating to public interest for the absence of legal recognition for same-sex unions.

The court found that Romania’s government’s submissions to the court on grounds of public interest did not prevail “over the applicants’ interest in having their respective relationships adequately recognised and protected by law.

While the standard for non-punitive damages was met, the court did not name an amount. The applicants’ claims for punitive damages were rejected.

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