I cannot see any reason why legal recognition of reassignment of sex requires that biologically there has also been a (complete) reassignment; the law can give an autonomous meaning to the concept of “sex”, as it does to concepts like “person”, “family”, “home”,
“property”, etc. 2
Judge Van Dijk of the European Court of Human Rights, 1998
The Council of Europe is by far the most firmly established of all regional human rights systems in the world. This is mainly due to the wide ratification of the European Convention on Human Rights and Fundamental Freedoms and the existence of the European Court of Human Rights which develops the interpretation of the Convention in its case law. The European Convention has been subject to thousands of legally binding judgements as it permits individual complaints arising from legal disputes between individuals and States. Thus, if a legal complaint in the national legal system of a Member State of the Council of Europe has exhausted the possibilities of complaining further to a higher level within the national system, of which the highest is usually
2Sheffield and Horsham v. the United Kingdom, 30 July 1998, Reports of Judgments and Decisions 1998-V, Dissenting opinion, para 8.
called “supreme court” or the like, the applicants may complain to the European Court of Human Rights, which may grant them a favourable judgement and order the State in question to pay damages to the applicant(s), or not if the case is not deemed that relevant or the issue at hand remains in the margin of appreciation of the State (see Johnson 2013: 69-76)
Marriage and family life have been dealt with in several human rights treaties of the Council of Europe as well as treaties of the European Union. The foundation of human rights protection in the Council of Europe is the European Convention on Human Rights and Fundamental Freedoms opened for State signatures in 1950 and its optional Protocols (especially Protocol 12, adopted in 2000, with regard to the prohibition of discrimination) and the European Social Charter (adopted in 1961, revised in 1996). European human rights norms have also been interpreted in the context of the Treaties of the European Union. The Charter of Fundamental Rights of the European Union (proclaimed in 2000, entered into force in 2009 as part of the Treaty of Lisbon) provides further elaboration of human rights norms relating to family life, too.3
A considerable part of the case law of the European Convention on Human Rights touches upon the protection offered by Article 8 of the Convention, the right to respect for private and family life, the home and correspondence. Out of the almost 38,700 judgements and decisions delivered by the machinery of the European Court between 1959–2014 and available on the Hudoc database, 1,365 documents (some of them overlapping and concerning the same complaint) have been delivered concerning Article 8 with the keyword “respect for family life” in the search function of the database of ECHR case law,Hudoc.
Out of these documents, about 560 are judgements where a Chamber of the European Court has admitted the case for full procedural treatment and delivered a reasoned judgement on it with a composition of seven judges. 40 of these judgements have been sent additionally to the Grand Chamber, the highest instance in the European Court of Human Rights, where cases of exceptional complexity are adjudicated with a larger group of seventeen judges.4 Decisions, a category of lower importance in the hierarchy of documents in the ECHR system, constitute legally and sociologically relevant material if they pronounce the application made against a certain Member State inadmissible, that is, not worthy of full court procedure and a judgement.
It is here where many applications to the European Court have ended up over the decades: for example, many complaints to the Court by same-sex couples for the protection of private and family life were deemed inadmissible because it was not seen to be within the scope of the European Convention to protect
3 See list of relevant Treaties in Sources.
4 Hudoc database, situation on 4 April 2016.
Analysing Family Relations in European Human Rights Law
same-sex adult relationships when they were legally not in the same position as opposite-sex married couples or cohabitees5 (Grigolo 2001, Johnson 2013).
As noted by Ovey and White in a textbook on the European Convention as a whole, “the rights protected in the European Convention draw their inspiration from the Universal Declaration, but do not simply duplicate the rights referred to there” (2006: 2). The European Convention was adapted to the interests, needs and the context of the twelve original signatory States6, mainly Western European States, bearing in mind the horrors of the Second World War and the threat of communism perceived at the time (Ovey and White 2006: 2). The European Convention was drafted in the late 1940s, opened up for signature in 1950 and entered into force in 1953 after it was ratified by the first wave of Western European States. Later on, especially after the breakdown of the Soviet Union, a great number of Eastern European States joined the Council of Europe and ratified the European Convention on Human Rights. After its emergence in the 1950s, the European Convention has been further developed through optional Protocols, ratified by Member States. A lot of the norms developed through these Protocols relate to technical or procedural matters. However, for example Protocol 12 elaborates the prohibition of discrimination but has not been ratified by all Member States.
The wording of Article 8 of the European Convention, the most often cited right in the cases analysed in this study, is illuminated to a certain degree by thetravaux préparatoires (preparatory works) of the European Convention from the time it was being written in the era after the Second World War.
Article 8 of the European Convention reads that “Everyone has the right to respect for his private and family life, his home and his correspondence”. In the preparatory works on Article 8 of the ECHR, the first source cited is Article 12 of the Universal Declaration of Human Rights, which is worded as follows
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.7
Preparatory works on Article 8 of the ECHR
Thus, what the European Convention says about family life relates to the protection of privacy understood as the private sphere of close personal relations, one’s domicile and communications. In addition, there is Article 12
5 For example,S. v. United Kingdom, no. 11716/85, Commission decision 26th August 1986, C. and L. M. v. the United Kingdom, no. 14753/89, Commission decision of 9 October 1989, Kerkhoven, Hinke and Hinke v. the Netherlands, no. 15666/89, Commission decision of 19 May 1992.
6 Belgium, Denmark, France, Germany, Iceland, Ireland, Italy, Luxembourg, the Netherlands, Norway, Turkey and the United Kingdom (Ovey and White 2006: 2)
7 See http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005. (Accessed 16 October 2015).
of the European Convention, which says 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”. Thus, what the European Convention says about family formation and family life relates to the protection of privacy, the right to marry and to reproduce according to accepted norms, but the ECHR does not contain a definition or a proclamation of what family “is” in the spirit of Article 16 of the UDHR with its definition of family as “natural” and “fundamental” unit of society. In short, the words signalling the legacy of Catholic Social Teaching have not been included.
The word ‘family’ does not appear on its own, only as part of the concept of
“family life”. However, in the decades that follow the drafting of the Convention, the meaning of the concept of family has indeed come under scrutiny in the European Court, but due to the phrasing of Article 8, it needs to be phrased as “right to respect for (private and) family life”. Thus, ‘private life’ acts as the main sphere to be protected, including a wide array of issues such as identity (see e.g. Goodwin v. the United Kingdom from 20028 on transgender identity) and sexuality (e.g.Dudgeon v. the United Kingdom from 19819). Family life is a privileged sphere within private life, and the liminal category of ‘de facto family life’10 has recently been enlarged to apply to same-se couples as well in Schalk and Kopf v. Austria11. As we can see from paragraph 2 of Article 8, this is a qualified right, where the exercise of the right can be limited due to a number of reasons relating to the functioning of the State or the well-being of its citizens. For example, in the 1950s there were several complaints filed against the Federal Republic of Germany because of its legislation criminalising homosexual relations. All of these complaints were deemed inadmissible, as the existence of these laws was seen as legitimate for the ‘protection of health and morals’ (Grigolo 2001: 1029, see also Johnson 2013: 22-29). Balancing between this main substance of Article 8 and State interests listed above is what makes the case law under Article 8 so interesting also from a sociological point of view.
Thus, Article 8 of the European Convention on Human Rights reflected the need to protect privacy and family life as well as one’s home from arbitrary interventions of the State:
(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
8Christine Goodwin v. the United Kingdom [GC], no. 28957/95, ECHR 2002-VI.
9Dudgeon v. the United Kingdom, 22 October 1981, Series A no. 45.
10 “De facto is defined to mean “in fact, in reality, in actual existence, force, or possession, as a matter of fact” by the Oxford English Dictionary (OED 2015). This translates also to “family life in practice” or “informal family life” in the context of the ECHR.
11Schalk and Kopf v. Austria, para 94.
Analysing Family Relations in European Human Rights Law
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.
ECHR, Article 8
Furthermore, Article 12 of the Convention reads “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.” Article 12 has been subject to much less jurisprudence, as it surfaces in a little over 150 judgements and decisions of which less than 27 are judgements by the the end of 2014. These judgments do not all concern the “right to marry” but “the right to marry and to found a family” more broadly.12 However, this Article has been the bone of contention in recent case law regarding the right to marry in the context of same sex-couples, such asSchalk and Kopf v. Austria from 201013. It has also been challenged in the case of a transgender person who was married before her gender recognition process from male to female was completed in Hämäläinen v. Finland from 2014, a Grand Chamber judgement14. The wording of Article 12 leaves a wide margin of appreciation to Member States, as the wording of the article relegates the exercise of the right back to national legislation. So far, in the judgements mentioned above, the European Court has ruled that the European Convention does not lend support to the interpretation that States could be pushed to provide the possibility of same-sex marriage.
Article 14 is also of great importance, as it is often technically paired with Article 8 in order to evaluate the case from the point of view of the prohibition of discrimination in the context of, for example, the right to respect for family life:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
ECHR, Article 14
Of significant importance to the protection of family life is Protocol 12 of the European Convention, which focuses on the prohibition of discrimination as its Article 1 proclaims:
12 Hudoc database, 1 April 2015.
13Schalk and Kopf v. Austria, no. 30141/04, ECHR 2010.
14Hämäläinen v. Finland[GC], no. 37359/09, ECHR 2014.
The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.
Protocol 12, ECHR
Protocol 12 was adopted in 2000 and entered into force in 2005. However, it has been ratified only by less than twenty states of all 47 Member States, thus not being a very effective instrument in the protection of minorities or other groups subject to discrimination.15
The Council of Europe is the organisation between a considerable number of other intergovernmental documents and treaties in the region of Europe and Eurasia. However, none of them are of the same importance as the European Convention of Human Rights as it has accumulated such a vast body of case law. In any case, a glimpse into other key documents of the Council of Europe and the European Union helps to shed light on how the protection of
“family” is phrased in documents that have appeared after the European Convention. The European Social Charter, another document of the Council of Europe, has not been of central importance in defining European human rights policies, but it does offer a view into how rights related to family life have been conceived from the viewpoint of social rights. In its first, original version, adopted in 1961, the most important rights related to family life replicated the spirit of the Universal Declaration of Human Rights:
4. All workers have the right to a fair remuneration sufficient for a decent standard of living for themselves and their families…
16. The family as a fundamental unit of society has the right to appropriate social, legal and economic protection to ensure its full development.
17. Mothers and children, irrespective of marital status and family relations, have the right to appropriate social and economic protection.
European Social Charter, 1961
The family is a “fundamental unit of society” in the spirit of the Universal Declaration of Human Rights, and non-marital mothers and children deserved a special mention even in the pre-Marckx era. In its revised version from 1996,
15 Protocol 12 of the European Convention on Human Rights and Fundamental Freedoms, http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?MA=3&CM=7&CL=ENG. (Accessed 9th April 2015.)
Analysing Family Relations in European Human Rights Law
family is the fundamental unit of society, but the protection of mothers and children has changed into the protection of children and young persons.
Compared to the earlier version, a provision was added concerning the protection of combining work with family responsibilities:
16. The family as a fundamental unit of society has the right to appropriate social, legal and economic protection to ensure its full development.
17. Children and young persons have the right to appropriate social, legal and economic protection…
27. All persons with family responsibilities and who are engaged or wish to engage in employment have a right to do so without being subject to discrimination and as far as possible without conflict between their employment and family responsibilities.
Revised European Social Charter, 1996
The Council of Europe and the European Union are two separate intergovernmental organisations, but they are linked to each other in important ways. For over twenty years, membership of the Council of Europe and ratification of the European Convention on Human Rights have been central requirements that new Member States of the European Union need to fulfil since the accession criteria to the EU were defined in 199316. Thus, for example, the decriminalisation of homosexuality is a human rights norm that new Member States of the EU have to abide with – a norm that has not been seen as such by many States within the United Nations on a global level (see O’Flaherty and Fisher 2008). The Charter of Fundamental Rights of the European Union was incorporated in the Treaty of Lisbon signed by EU Member States in 2007, and came into effect in 2009 when the its ratification process came to an end. It is an example of the evolution of human rights principles in Europe, giving an indication of the changes that have taken place within the Member States of the European Union, compared to the wide geographical and political scope of the Council of Europe or the ‘universal’
human rights documents of the United Nations. 17
16 These are referred to as the “Copenhagen criteria”, see “Accession Criteria” in Sources. The condition of adhering to the European Convention on Human Rights in order to be a Member State of the European Union is spelled out in Article 6(3) of the Treaty of the European Union (amended version known as the Lisbon Treaty): “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the
constitutional traditions common to the Member States, shall constitute general principles of the Union’s law”. Treaty of Lisbon Amending the Treaty on the European Union and the Treaty Establishing the European Community, see Treaties in Sources.
17 Treaty of Lisbon Amending the Treaty on the European Union and the Treaty Establishing the European Community, see Treaties in Sources.
The interrelationship of the Council of Europe and the European Union, or the European Convention on Human Rights and the European Union as a political entity has been tested as the EU was to become a signatory of the European Convention. This means that even though the European Union is not a sovereign state like the other signatories of the Convention, it would be bound by the human rights norms of the Convention directly and not just through its Member States. The accession of the European Union to the ECHR became an obligation in 2009 when the Treaty of Lisbon entered into force, and the accession negotiations and legal processes related to it have been in process since. In December 2014, the European Court of Justice delivered a negative opinion on the accession of the European Union to the European Convention, and at the moment the accession process has come to a standstill18.
Article 7 of the Charter of Fundamental Rights of the European Union deals with respect for private and family life in the spirit of Article 8 of the European
Article 7 of the Charter of Fundamental Rights of the European Union deals with respect for private and family life in the spirit of Article 8 of the European