Caught in a Balancing Act : The European Court of Human Rights and the Road to Recognition for Sexual Minorities

Abstract

When the European Convention on Human Rights was drawn up in 1948, the issues of sexual orientation and gender identity were not considered by its drafters. At that time, the discussion of the rights of LGBT people (Lesbian, Gay, Bisexuals and Transsexuals), which has at present become very vivid, was virtually non-existent. As a consequence, the legal protection provided to heterosexual and cisgender people in the areas covered by the right to respect for private and family life (Article 8), the right to marry and found a family (Article 12), and the prohibition of discrimination (Article 14) was inaccessible to the non-heterosexual and non-cisgender community. The current article elucidates on the topic of the gradual opening up of the European Court of Human Rights in applying the Convention to sexual minorities, and argues that the Court has made significant progress in defending the rights of LGBT ever since its installation in 1959. The article describes the Court’s ultimate balancing act, in which it oscillates between progressiveness and reticence, never fulfilling the role of protagonist but still aiming at providing a most fundamental principle of human rights law: equality.