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Sex life, sexual orientation and sexual identity

The right to private life under article 8 ECHR embraces a person’s sex life (Stübing v Germany, para 55). Since interferences with the sex life touch upon a particularly intimate part of the life of the affected person, the margin of appreciation accorded to the contracting states in this area is narrow. In addition to the requirement to be based on a law, interferences with the sexual life of a person have to respond to a pressing social need.

In a number of resolutions, the Court has scrutinized legislation pertaining homosexuals. In the case Dudgeon v UK, the applicant complained about laws in force in Northern Ireland according to which homosexual acts between consenting adult males constituted a criminal offence. The applicants house had been searched by police for drugs. On this occasion, private correspondence and diaries were confiscated. Since homosexual activities were described in these documents, the applicant was questioned by police about his private and sex life. No charges were brought against the applicant. At this point of time, no proceedings for homosexual acts between adults over the age of 21 had been instituted for several years already. The Court stated that the very existence of legislation sanctioning homosexual acts amounted to an interference with the right to private life, regardless of the fact that in general no proceedings were initiated against consenting adults engaging in homosexual activities. The Court pointed also to the fact that, while as a matter of practices the prosecution discontinued proceedings in such cases, there was no official policy to this effect in place.

By the same token, the Court found in Norris v Ireland that the mere existence of criminal laws impugning homosexual acts amounted to an interference with the right to private life. The Court held that the fact that the applicant had, unlike the applicant in Dudgeon v UK, had not been questioned by police of subjected to an investigation, did not render the case distinguishable. It reiterated that the possibility of a criminal prosecution, which held the applicant in constant fear, amounted to an interference with his right to private life. Since the Court was unable to see any reasonable justification for this legislation, it found a violation of article 8 ECHR.

 

As pointed out above, the Court held in Laskey, Jaggard and Brown v UK that imposing criminal sanctions for body injuries, which have been inflicted on a consenting adult in the context of sado-masochistic games does not violate the right to private life under article 8.

In Stubing v Germany, the Court has scrutinized provisions of criminal law prohibiting incestuous sexual relationships. The applicant had had a sexual relationship with this sister from which four children emerged. Since sexual intercourse with a consanguine relative is a criminal offence in Germany, the applicant was convicted to one year and four months of imprisonment. In his application to the European Court of Human Rights, he relied on article 8 ECHR and claimed that the prohibition of incestuous sexual relationships violated his right to private life. The Court rejected this stance. At the outset, it stated that there had to be particularly weighty reasons to justify an interference with the right to private life which affected an aspect of private life such intimate as the sex life. However, the Court pointed out that there was no consensus regarding criminal liability for sexual intercourse between siblings in Europe. In many member states of the Council of Europe sexual intercourse between siblings was still considered a criminal offence. In addition to that, the motifs which had guided the German legislator when endorsing the provisions of criminal law regarding incest as well as the reasons adduced by the German courts when motivating the conviction of the applicant (e.g. protection of family, public health) were not unreasonable. Therefore, the European Court of Human Rights found that Germany had acted within its margin of appreciation when convicting the applicant. Consequently, the Court did not find a violation of the right to private life

 

The Court has reiterated this jurisdiction in Modinos v Cyprus. The applicant, who was the President of the ‘Liberation Movement of Homosexuals in Cyprus’ was engaged in a sexual relationship with a male adult. He argued that legislation according to which homosexual acts between adults constituted a criminal offence was in violation of his right to private life under article 8 ECHR. He pointed to a case in which a 19 year old soldier had been convicted by the Supreme Court of Cyprus for homosexual acts after the European Court of Human Rights had rendered the judgment in the case Dudgeon v UK.  The Supreme Court has expressly adopted the dissenting opinion which the Cyprian judge had issued in the Dudgeon case.

The Government of Cyprus submitted that there was no danger of the applicant being prosecuted. It stated that the recent conviction of a person by the Supreme Court had concerned acts which had not been committed in private. For private homosexual acts, there was no real danger of being prosecuted.

The ECtHR disagreed with this point of view. It stated that the provision incriminating homosexual acts was still part of the statute and emphasized that Supreme Court’s adopting of the dissenting opinion in the Dudgeon case nourished the concern that criminal prosecution for homosexual acts was still a possibility. It therefore found a violation of article 8 ECHR.

 

In Smith and Grady v UK, the Court has held that discharging a person from the armed forces on the grounds of homosexualityviolates the right to private life. The applicants were a nurse working with the navy and a chief clerk deployed in the air force.  Both applicants were homosexual and had been aware of this when taking up employment with the armed forces already. At the material time, a policy had been in place in Great Britain according to which homosexuals could not be employed in the army. The applicants had not stated that they were homosexual when applying for their positions. When it was uncovered that the applicants were homosexual, an investigation was launched in the course of which the applicants were questioned with regard to their sex life. Ultimately, they were discharged from the armed forces. The Government argued that the applicants had been aware of the rules regarding homosexuals in the military when joining and that they had lied about their being homosexual. The Government also pointed out that the policy excluding homosexual persons from serving in the armed forces was justified since it protected the fighting power of the British military.

The Court stated that the applicants had not waived their rights under article 8 ECHR when joining the military. It held that the discharge from the armed forces as well as the investigation the applicants had been subjected to and which had entailed questions of a very intimate nature constituted an interference with the right to private life. This interference had, according to the Court, not been justified pursuant to paragraph 2 of article 8 ECHR. While the Court acknowledged that the ban of homosexuals was based on a law and had been put into place to serve a legitimate aim, it did not consider this policy necessary in a democratic society. It pointed out that only a small minority of European countries excluded homosexual persons from the military. The Court also stated that all concerns regarding the employment of homosexual military personnel could be addressed in other ways than by way of a ban. Accordingly, the Court found that the investigation which the applicants had been subjected to and their ensuing discharge had violated their right to private life.

 

As pointed out above, the Court has acknowledged that gender falls within the ambit of private life under article 8 ECHR. In a number of resolutions, it has elaborated on the implications of article 8 for the legal situation of transsexuals.

Gender re-assignments give rise to a host of questions, regarding for example pension entitlements (in many countries, the retirement age is different for men and women), birth certificates, names in official documents and public registers.

The European Court of Human Rights has initially adopted a restrictive approach to the impact which the Convention has on these issues. In Rees v UK, the applicant was a female-to-male transsexual. After changing his name to a male name, he requested a new passport. While the passport was issued under the new name, the authorities refused to include the prefix ‘Mr’.  They also did not grant his request to alter the birth register. The Court held that the lack of legislation governing the change of official documents and registers did not amount to a violation of article 8 ECHR. It pointed to the margin of appreciation contracting states enjoy concerning the measures to adopt in view of transferring the guarantees enshrined in article 8 into national law. While there were by-laws to resolve issues such as the one brought forward by the applicant were in place in some Council of Europe member states, the ECtHR stated that the UK could was not compelled by article 8 to enact similar legislation.

In Cossey v UK, the Court has confirmed this approach. The applicant had undergone gender re-assignment and wished to marry. Authorities had informed her that she was legally still considered a man. The Court stated that there were no reasons to depart from its judgment in the Rees case, since there were no scientific or social developments which would justify or require a different evaluation.

 

While the European Court of Human Rights did hold France in violation in the case B. v France, this judgment did not indicate a change in the Court’s stance on the impact of the right to private life on the legal framework with regard to transsexuals in the contracting states. The applicant had been born as a male child in Algeria but had considered herself a girl at an early stage of her life. She had moved to France where she lived as a woman with a man. She had tried to enter her name in official registries etc.  without success. The Court pointed out that the French law at the material time did not allow for the recognition of transsexuals at all which had resulted in considerable hardship for the applicant. It found this to be in violation of the right to private life. However, it also stated that it did not see feel compelled to depart from the general view taken in the cases Rees and Cossey.

This approach was changed in I v UK and Christine Goodwin v UK. In Goodwin. In the latter case, the applicant was a male-to-female transsexual. After she had undergone surgery she requested that her national insurance number be changed since she feared that the number would make it possible to track back former employers and obtain information about her gender re-assignment. Her request was denied. Also, she had been informed that she was going to be eligible for state pension at the age of 65, which was the retirement age for men. The applicant submitted that the lacking legal recognition of her gender re-assignment violated her right to private life.

The Court referred to its prior resolutions regarding the implications of article 8 on the legal situation of transsexuals. It stated that despite of the importance of legal certainty and predictability of judgments by the Court, the Convention had to be interpreted in the light of present-day conditions for the rights enshrined in it to be practical and effective. The EctHR pointed out that transsexualism was internationally widely acknowledged as a medical condition and asserted that there was a clear international trend to recognise the new sexual identity of persons having undergone a gender re-assignment. In light of these developments, the respondent state’s failure to adopt a legal framework which catered for the recognition of transsexuals and the practical implications infringed art. 8 ECHR.

Similarly, the Court found Lithuania in violation of the right to private life in L v Lithuania. The applicant was a female to male transsexual had had partially completed his gender surgical re-assignment. At the material time, the Civil Code of Lithuania had provided for the recognition of transsexuals. However, by laws governing important rights in the area of health care, insurance, public registers etc had, although they had been drafted, not been adopted. The Court held that the failure to enact corresponding laws for four years amounted to a breach of article 8 ECHR.

In van Kuck v Germany, the Court dealt with the obligation of an insurance company to bear the costs for a gender re-assignment. The applicant was a male to female transsexual. She had a contract with an insurance company, which obliged the company to pay 50 % of the cost of necessary medical treatment. After the insurance company had refused to reimburse the applicant for the cost of hormone treatment and had rejected to give an undertaking to bear a part of the expenses for surgery with the aim of gender reassignment, the applicant had filed a civil action against her insurance company. German courts rejected her claim ruling that gender reassignment could not be considered a necessary treatment for the time being. Inter alia, they stated that the applicant would have to undergo extensive psycho-therapy before embarking in surgery and that the applicant had contributed to her situation herself.

The European Court of Human Rights held that the disregard German courts had demonstrated for the situation of the applicant had violated the positive obligation of the state to respect her right to private life.

 

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