Many commentators would say that, with only 3 of 46 member states of the Council of Europe permitting same-sex couples to marry as of March 2007 (4 if a recent recommendation in Sweden becomes law in 2008), it is too early to take the question of equal access to legal marriage for same-sex couples to the European Court of Human Rights (cf. 1 of 50 states in the USA). But it is often hard to persuade individual litigants and their lawyers not to do so. The Court has already received an application from Austria, and could soon receive others from France and Ireland.

 

These applicants are probably wasting their time (and more importantly the Court's time), as a result of two recent decisions dealing with same-sex couples consisting of a transsexual woman and a non-transsexual woman, R. and F. v. United Kingdom, Application No. 35748/05 (declared inadmissible on 28 Nov. 2006) (couple from Scotland), and Wena & Anita Parry v. United Kingdom, Application No. 42971/05 (declared inadmissible on 28 Nov. 2006) (couple from England). See http://www.echr.coe.int/  (HUDOC, click "Decisions" on the left and type in the application number; admissibility decisions have less precedential weight than judgments.).

 

In each case, the two women were married as a male-female couple before the transsexual woman (born male) transitioned. Under the UK's Gender Reassignment Act 2004, the transsexual party to such a marriage must choose between legal recognition of their gender reassignment and remaining legally married to their spouse: a divorce is a condition of obtaining a full gender recognition certificate. At the time their cases were considered by the Court, both couples were legally different-sex (the transsexual women were legally male) but factually same-sex. They argued that the European Convention on Human Rights requires the UK Government to grant the gender recognition certificates AND permit them to remain married as both legally and factually same-sex couples, rather than force them divorce and then register as a same-sex couple under the UK's Civil Partnership Act 2004.

 

A 7-judge Chamber of the Court unanimously declared both applications inadmissible as manifestly ill-founded. The reasoning in each decision is identical (the following quotations are from Parry):

 

(1) No violation of Article 8 (right to respect for private and family life)

 

"In the present case, the Court notes that the requirement that the applicants annul their marriage flows from the position in English law that only persons of the opposite gender may marry; same-sex marriages are not permitted. Nonetheless it is apparent that the applicants may continue their relationship in all its current essentials and may also give it a legal status akin, if not identical to marriage, through a civil partnership which carries with it almost all the same legal rights and obligations. It is true that there will be costs attached to the various procedures [an annulment or divorce followed by a civil partnership]. However the Court is not persuaded that these are prohibitive or remove civil partnership as a viable option. The Court concludes, as regards the right to respect for private and family life, that the effects of the system have not been shown to be disproportionate and that a fair balance has been struck in the circumstances."

 

(2) No violation of Article 12 (right to marry)

 

"In domestic law marriage is only permitted between persons of opposite gender, whether such gender derives from attribution at birth or from a gender recognition procedure. Same-sex marriages are not permitted. Article 12 of the Convention similarly enshrines the traditional concept of marriage as being between a man and a woman (Rees v. United Kingdom, 1986). While it is true that there are a number of Contracting States which have extended marriage to same-sex partners, this reflects their own vision of the role of marriage in their societies and does not, perhaps regrettably to many, flow from an interpretation of the fundamental right as laid down by the Contracting States in the Convention in 1950. The Court cannot but conclude therefore that the matter falls within the appreciation of the Contracting State as [to?] how to regulate the effects of the change of gender in the context of marriage (Christine Goodwin v. United Kingdom, 2002). It cannot be required to make allowances for the small number of marriages where both partners wish to continue notwithstanding the change in gender of one of them. It is of no consolation to the applicants in this case but nonetheless of some relevance to the proportionality of the effects of the gender recognition regime that the civil partnership provisions allow such couples to achieve many of the protections and benefits of married status. The applicants have referred forcefully to the historical and social value of the institution of marriage which give it such emotional importance to them; it is however that value as currently recognised in national law which excludes them."

 

(3) No violation of Article 14 (prohibition of discrimination)

 

"The Court doubts that the applicants can, for the purposes of Article 14 ..., claim that they are in a comparable position to others who are unaffected by the new legislation but to the extent that any possible issue of difference of treatment arises, this is justified on the same grounds identified above in the context of Articles 8 and 12 ..."

 

Normally the original intent of the drafters in 1950 is not considered significant in interpreting the European Convention, which the Court construes in light of current European practices and not those of decades ago, so the Court's invocation of this idea seems contrary to normal practice. And it is worth noting that UK civil partnerships confer almost all the rights of marriage, not just "many" as the Court suggested.

 

In same-sex marriage litigation around the world, it is still worth citing the case law of the European Court of Human Rights for its analogies between sexual orientation and race, religion and sex, its "strict scrutiny" ("particularly serious reasons" are required), and its rejection of the "procreative capacity argument" in its 2002 Goodwin judgment. The decisions in R. & F. and Parry must be acknowledged. But they only show that the Court is not yet willing to interpret the Convention as requiring full equality for same-sex couples in 46 countries with over 800,000,000 people. This does not mean that a court interpreting a constitution for one country, or one state within a country, with a much smaller population, should hesitate to require full equality.