Friday, December 30, 2005

The debt gays owe to the European Court of Human Rights

While it takes time to persuade the Court of Human Rights to adopt a position, once that position is adopted, it seems to pursue that position forcefully. Some time in the late 1990s the Court concluded that discrimination on the basis of sexual orientation was as serious as discrimination on the basis of gender, race or religion (up to that time, it allowed governments discretion in contentious areas like the age of consent and recognition of same-sex partnerships). Since that time it has come out with a very strong and unequivocal series of judgements in relation to the age of consent, the Armed Forces, custody rights, and equal treatment of unmarried same-sex and opposite sex partners. It has also adopted strong positions on transgender rights.

The reality is that the European Court of Human Rights has been an extraordinary force for change in Europe over the last 25 years. Since the Court ruled in the Dudgeon case (1981) against the criminalisation of same-sex relationships, decriminalisation has taken place in more than 20 jurisdictions. And the effects of its more recent judgements continue to be felt across Europe.
And looking at the EU, which only relatively recently (1997) adopted powers to combat discrimination, including those based on sexual orientation: one single directive, the employment directive, has provided legislation protecting lesbians, gays and bisexuals from employment discrimination in 25 countries. While, admittedly, a few of these countries already had such laws, the Directive was, in terms of the numbers of people affected favourably (and allowing for a couple of areas of weakness), arguably the most important piece of legislation in the history of the LGBT movement worldwide.

With civil partnership legislation coming into force this month, and with a government promise of legislation banning discrimination in the field of goods and services, my own country, the UK, is rapidly becoming one of the best countries in the world in terms of LGBT friendly legislation. But, until only a couple of years ago, virtually every positive step in favour of LGBT rights in the UK was the result of "Europe". The lifting of complete bans on sex between men in Scotland and Northern Ireland, the equalisation of the age of consent, the removal of discrimination in privacy laws, the right to work in the Armed Forces, removal of discriminatory criminal offences, recognition of transgender people's rights to change their birth certificates and to marry….indeed, it is possible to argue (without too much exaggeration) that It is only in the last few years, with adoption rights, civil partnership, and now proposed legislation banning goods and services discrimination, that any UK government has done anything significant for LGBT people without European pressure, since the original (and severely flawed) Act of 1967 (which decriminalised relationships between men over 21).

So let us recognise the extraordinary benefits of the European human rights system, and let' s keep using the wide opportunities it provides for opposing homophobia in the many European countries where it is still so intense.

Nigel Warner of ILGA (originallyposted to the euro-queer list)


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