Europe’s two top courts, the European Court of Human Rights (ECHR) and the Court of Justice of the European Union (CJEU), delivered two important rulings on the rights of sexual minorities last week. Coincidentally rendered on the same day, the two decisions juxtapose the fight for the legal recognition of same-sex relationships in certain parts of the world to the plight of those forced out of their home countries, fleeing persecution on the basis of their sexual orientation.
The question in Vallianatos and Others v. Greece before the Grand Chamber of the Strasbourg-based ECHR was whether Greece could limit the registered partnership regime it had recently enacted exclusively to different-sex couples. Unconvinced by the reasoning of the Greek government, the court sided with the four same-sex couples who complained that their exclusion from the civil union regime, a new partnership scheme created in 2008 exclusively for different-sex couples, constituted a discriminatory violation of their right to respect for private and family life (Article 14 taken together with Article 8 of the European Convention on Human Rights).
In its reasoning, the court noted that same-sex couples’ ability to enter into stable committed relationships and their needs regarding mutual support and assistance being similar to different-sex couples was already well established in the jurisprudence. It emphasized that the ability to have their relationships formalized by the state would have an “intrinsic value” for same-sex couples (para. 81).
The court underlined that as the convention was a living instrument the state had to consider societal developments and the fact that “there is not just one way or one choice when it came to leading one’s family or private life” (para. 84).
The court did not accept that the protection of children born outside of marriage and the strengthening of the institution of marriage, as invoked by the state, were the primary objectives of the law. It rather considered that the civil union legislation was aimed first and foremost at creating a new non-marital partnership regime. Irrespective of the legislature’s intention, however, the fact remained that the law had created a civil union scheme that was exclusively open to different-sex couples, no matter if they had children (paras. 86-88).
In any case, the court’s view was that the state could not prove the exclusion of same-sex couples from the civil union regime had been necessary to achieve the goals referred to (para. 89).
The court highlighted that two domestic bodies had also found the law to be discriminatory, and that while different-sex couples could have their relationship legally recognized both through a marriage or a de facto partnership, for same-sex couples civil unions would provide the only avenue in Greek law to formalizing their relationship (paras. 89-90). Finally, the court pointed to the currently emerging trend within the Council of Europe towards legal recognition of same-sex relationships: Greece and Lithuania were the clear outliers among the 19 member States that introduced an alternative partnership regime to marriage, as the two states barring same-sex couples from such a scheme (para. 91). In conclusion, the court ruled the state had not provided convincing and weighty reasons that would have justified the exclusion of same-sex couples from the scope of the civil union law, and found a violation of Article 14 taken together with Article 8 (para. 92).
In many parts of the world, however, the recognition of same-sex unions is an elusive notion, particularly where sexual minorities face widespread, frequently state-sponsored, persecution. The case of X, Y, Z v. Minister voor Immigratie en Asiel concerned three young gay men from Sierra Leone, Uganda and Senegal—countries where same-sex acts constitute a criminal offence with the threat of imprisonment. The three men had been denied residence permits for asylum in the Netherlands, because they had failed to prove that they had a well-founded fear of persecution on return to their countries of origin. The Dutch national court sought clarification from the Court of Justice of the European Union as to whether homosexuals from a third country could be considered within the remit of the “particular social group” category of the Qualification Directive, and whether the criminalization of same-sex activities in the applicant’s country, with the threat of imprisonment, amounted to persecution.
The Luxembourg-based court held that “a person’s sexual orientation is a characteristic so fundamental to his identity that he should not be forced to renounce it” (para. 46). Further, the court recognized that the existence of criminal laws singling out homosexuals were indicative of their being perceived as forming a separate group perceived of as different by society (para 48). As a result, the court established that refugees seeking protection due to their sexual orientation were on par with religious and political outcasts in the sense that they also could not be required to go back to their country of origin and conceal their homosexuality or to exercise reserve in the expression of their sexual orientation (para. 76).
Regarding the interpretation of persecution, the court asserted that the criminalization of same-sex activities per se did not amount to persecution as defined by the 1951 Refugee Convention that requires a “sufficiently serious” violation of fundamental rights to reach the level of persecution (para. 55). However, a term of imprisonment sanctioning same-sex acts that is actually applied must be regarded as constituting an act of persecution (para. 61).
This approach is contentious, since the sheer existence of laws that criminalize same-sex acts have the potential to sustain state-condoned homophobia and serious evidentiary concerns may arise in countries where proper documentation of anti-gay persecution is lacking. At the same time, the fact that practices pertaining to the adjudication of asylum claims based on sexual orientation will now be harmonized across the EU is a welcome development. To ensure that those who are forced to escape persecution are fairly treated in Europe, it is imperative that asylum officials be adequately trained and sensitized so that they are equipped to deal with asylum-seekers belonging to a sexual minority without prejudice and culturally encoded expectations.
The two decisions serve as a sobering reminder of the striking differences in the way sexual minorities are treated around the world. In 2013, even as a growing number of nations join the ranks of states with equal marriage rights or some form of legal recognition for same-sex couples, seventy-eight countries still criminalize same-sex relations, with the death penalty on the books for consensual same-sex conduct in seven of them.