ECtHR’s Lost Opportunities in its Transformative Rulings: Queer Interpretation of Right to Privacy and Protection from Discrimination

European Court of Human Rights © Christian Lemâle

Previous year the European Court of Human Rights [‘the Court’ or ‘ECtHR’] delivered some significant rulings strengthening ECtHR’s jurisprudence on Article 8 and Article 14 of the European Convention on Human Rights [‘Convention’] concerning Queer rights. The author in this article revisits three rulings of the ECtHR to argue that, nevertheless of being progressive rulings, the Court did fall short in addressing some major issues.

Firstly, in AM v. Russia, the Court ruled that Russian Court violated Trans individual’s rights under Article 8 read with Article 14 of the Convention by ending all contact between a trans woman and her children without a balanced and reasonable assertion of the legitimate interests [see here & here].

In the AM case, the Russian authorities and the applicant’s wife argued that the applicant is suffering from Transsexualism and further contended that the applicant’s intention to disclose her gender transition information to her children will impact their mental health and psychological development. This institutionalised prejudice of Russian authorities, nevertheless of ‘homosexuality propaganda law’ being held as unconstitutional in the state, exacerbates the ‘vicious wheel’ connected with prejudiced perceptions against trans individuals and a lack of education and awareness on Queer rights. The Court fails to address this elephant in the room, that how these prejudiced notions could impact the children’s education and perception about their parent’s gender identity.

When addressing the ‘best interests of the children’s, the Court had the chance to conceptualise the children’s right to non-discrimination on the grounds of their parents’ gender identity under Article 2 Convention on the Rights of the Child [‘CRC’], and the right to preserve personal relations and direct communication with both parents continuously under Article 9/3 CRC. Further, the UN Committee on the Rights of the Child General Comment no. 14 also stipulates their right to receive information on Queer Community challenges as well as gender identity and transition under Article 13 CRC and the right to education under Article 28 and, Article 29 of the CRC. Arguably, the ECtHR could have delved into significant length concerning the challenges with utilizing negative preconceptions about transgender individuals to rationalize restraining relationships and communication between transgender parents and their children.

In the second ruling, the Fedotova v. Russia, the Court ruled that Russia’s failure to provide same-sex couples with the opportunity to have their relationships formally acknowledged in form of a marriage, or in any other form is in violation of Article 8 & 10 [see here and here].

Nevertheless, the application was brought for recognition of same-sex marriage, the Court doesn’t feel adequate to discuss Article 12 [‘right to marry’] anywhere in the ruling. The Court concluded that the moral views of the majority cannot be used to deny sexual minorities access to forms of legal recognition. Taking reference from queer interpretations of the ECHR (here and here), which consider the inherent heteronormative (i.e. bi-genderism) notion of most of the Convention’s rights and how to transgress this dialectic. Regardless of the fact (which is still unclear), whether the applicant didn’t include Article 12 or not, the Court itself could have incorporated Article 12 of its own volition.

Not only Supreme Courts of other jurisdictions [the US and South Africa] but also the international institutions like Inter American Court of Human Rights [‘IACtHR’] have rejected the anti-majoritarian notion. It can be argued, that the Court’s rationale of Schalk and Kopf v. Austria, i.e. the appreciation of the majority opinion, remains viable. Furthermore, it can be argued that the ECtHR entirely embraces Article 12’s “heterosexual structure,” principally rendering the article inapplicable to same-sex relationships.

The second issue is the necessity of the non-discrimination principle under Article 14. The applicants did claim on Article 14, however, the Court concluded that it was not relevant because it heretofore ruled the violation of Article 8. Since Dudgeon v. UK, it has been a well-established tenet of the ECtHR that rules that discrimination does not need to be investigated if it is not “a crucial element of the case“. It is unrealistic to contend that the lack of legal recognition does not have a severe discriminatory intent in a nation where same-sex individuals are continuously stigmatised and marginalised, where even the Constitutional Court supported the law on prohibition on “homosexuality propaganda.”

Lastly, in the  X v. Poland case, the Court ruled that there had been a violation of Articles 8 and 14 of the Convention after the domestic courts had refused to grant custody of the child on the grounds of the mother’s sexual orientation [on mother’s relationship with another woman].

Nevertheless, the observations that the Court concluded in its rationale, which was first observed in the Hoffmann v. Austria and have been repetitively reaffirmed in many of its rulings about allegations of discriminatory treatment against divorced parents, the Court overlooked an outstanding opportunity to state unequivocally that a parent’s sexual orientation does not influence their parental capabilities. The Court could have gone a step forward like it did in Vojnity v. Hungary, where the Court made clear that parents’ religious beliefs per se cannot influence their capacity to raise their children.

In Atala Riffo v. Chile, the IACtHR concluded that the Chilean Courts’ judgement to take children from their homosexual mother’s custody based on her sexual orientation was discriminatory, emphasising that ‘an abstract reference to the child’s best interest… without specific proof of the risks or damage to children that could result from the mother’s sexual orientation’ is not acceptable’

What is more disappointing is that the third-party intervention also highlighted Poland inequalities and prejudices in legal and practical matters concerning rainbow families and the attitude towards the Queer community being negative and Queerphobic. Later, the same was also emphasized by Judge Wojtyczek in his dissenting opinion. However, the Court still neglected to address this concern.

Conclusion: The Test Continues

These judgements are undoubtedly significant and are progressive in protecting trans parents’ rights, same-sex marriage recognition and discrimination on gender identity & sexual orientation. The author doesn’t question their contribution, however, the abovementioned arguments do signify the ECtHR’s inherent narrow approach in Queer Interpretation of Article 8 and 14. The ECtHR’s upcoming opportunities here, here and here, will further demonstrate the extent to which the Court is inclined to tread unprecedented ground in terms of acknowledging rainbow family relationships.

State Accountability, Obligations and Protection against Sexual Violence in School: IACtHR in Paola Guzmán v. Ecuador

When a 11-year-old girl in Bolivia was allegedly repeatedly raped by her step-grandfather, she became one of the world’s youngest victims of a shadow pandemic of gender-based violence that has swept the world as the coronavirus pandemic evolved. A substantial rise in reports of violence against girls and women throughout Latin America and the Caribbean during Covid-19 Pandemic is potentially enough to question the State[s] accountability in sexual-violence cases. Last year in June 2020, the Inter-American Court of Human Rights [‘the Court’] delivered its landmark judgement in the case of Paola Guzmán Albarracín v. Ecuador, where the court for the first time establish the state’s obligation to prohibit and address sexual violence in schools across the Latin America and the Caribbean.

The ‘Case’

The case concerns a school girl Paola del Rosario Guzmán Albarracn [‘Paola’] who was subjected to sexual assault by her public high school’s vice-principal. For continuous two years, he forced Paola into a sexual relationship and sexually assaulted her. Authorities at the school were cognizant of the issue, including vice-principle misdeeds. Paola became certain that she was pregnant in late 2002.  After threats from vice-principle for abortion, she visited school physician for abortion who proposed to terminate only in exchange for sexual favours. Later, she swallowed poison and died due to school’s unwillingness to take medical emergency measures. In 2006, the Center for Reproductive Rights, brought the issue to the Inter-American Commission on Human Rights [‘the Commission’] after Paola’s family members were deprived of justice throughout Ecuador’s domestic judicial proceedings.

Commission’s ruling

The Commission ruled that Ecuador is accountable for the violation of Paola’s fundamental right under the Inter-American Convention on Human Rights [‘Convention’], inter alia including the right to life, humane treatment, honour and dignity, special protection of the State for a girl, equality and non-discrimination, education, health, and a life free from violence. The Commission further held that Ecuador also violated the educational right protected under Article 13 of Protocol of San Salvador, and also violate Article 7 of the Belém do Pará Convention, failing to undertake appropriate measures to prohibit, penalize, and eliminate violence against women. Ecuador did not acknowledge the Commission’s recommendations. Therefore, in February 2019, the Commission brought the case before the Court.

Before the Court

The concerning issues before the Court were, firstly, the recognition of the State’s responsibility followed by the issue on the prevalence of sociocultural environments that foster human rights violations. The Court ruled that the vice-principle breached his status of authority, noting both the difference in age between him and Paola and the post he possessed, which reflected a trustworthy relationship with the female children. Thus, the instances took place in an educational atmosphere that not only lacked mechanisms to prohibit sexual assault but also institutionalized it. The Court concluded that Paola’s case was not an isolated case, but instead a structural position of sexual harassment & assault in the public education system. The ruling principally echoed the Commission’s observations, holding Ecuador directly accountable for a violation of Paola’s rights to life, personal integrity, private life, and dignity; special protection from the state as a child; equality and non-discrimination; education; and live free of gender violence.

Court’s rationale

The Court established that the State has an obligation to protect girls and adolescents from sexual assault in institutions and compelled Ecuador to implement structural measures to address sexual assault in the school surroundings, including, establishing a child-protection measures in accordance with the Convention on the Rights of the Child, followed by monitoring the situation of sexual violence in educational institutions and establishing measures to avoid it, and providing safe educational settings and lastly, establishing transparent and reliable reporting procedures so that incidents of violence may be recorded, investigated, and penalized.  

Furthermore, the Court underlined the necessity of proposing Comprehensive Sexual Education (‘CSE’) in school systems in the context of these state obligations. The Court recognized the Committee on Economic, Social, and Cultural Rights’ interpretation of CSE in General Comment No. 22, which stated that education must be free from discrimination, evidence-based, and scientifically authentic. The Court referred to patriarchal structures, gender stereotypes, the authority discrepancy between students and instructors, and multifaceted discrimination in sexual violence against girls and adolescents as a facet of the sociocultural environments that foster human rights violations.

Concerning the insufficiencies in the investigation and punitive measures of the responsible individuals, the Court found Ecuador accountable for violations of the rights to due process and judicial protection, including its general obligations to recognize and protect rights under the American Convention and the Belém do Prado Convention. Furthermore, the Court held that Paola’s mother and sister’s rights to humane treatment had been also violated including the right to psychological and social integrity [Para 207-214]. However, on the question of violation of freedom of expression and responsible for alleged acts of torture, or cruel, inhuman or degrading treatment to Paola, the Court reflected a negative approach and rationalize it with the absence of evidence of extreme sexual violence, and the substandard autopsy by medical authorities for examining Paola’s putative pregnancy and her impeded abortion which was unsubstantiated. The court concluded that Paola’s insufficient sex education had earlier been considered a violation of her right to education, rather than a specific limitation of her personal freedom of thought and expression, therefore, Ecuador is not accountable for these violations [Para 147-152].

In aspects of reparation, the Court mandated Ecuador to continue providing free psychological or psychiatric treatment to Paola’s mother and sister; publicly release the judgment; authoritatively recognise its responsibility; grant Paola a posthumous high school degree, pertaining to the family’s wishes; proclaim a national day against sexual violence in schools; recognize and implement interventions to address sexual violence [Para 276].

Conclusion

Paola’s judgement is remarkable since it is the first judgment on sexual assault in school’s spaces within the Convention’s jurisdiction. The Court’s ruling draws on preceding judgements by other transnational human rights organizations including the European Court of Human Rights’ 2014 ruling in O’Keeffe v. Ireland, holding Ireland accountable for failing to protect a nine-year-old girl from sexual violence by her teacher due to insufficient school close monitoring. The ruling will aid Ecuador and other nations of the Inter-American System of Human Rights to strengthen their national legal institutions on sexual violence and abuse in school, since rulings of the Court are regarded not only as a method of redress but also as statutory standards that have substantial implications for national legal systems.