The European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) have issued important pro-LGBTQ decisions during the month of January.
On January 12, the ECJ issued a “preliminary ruling” in response to a referral from the Warsaw, Poland district court in which the ECJ described the wide scope of European Community law banning workplace discrimination on the basis of sexual orientation. On January 17, the ECHR ruled in a case from Russia that the failure of a country to provide some legal status for same-sex couples that protects rights similar to those extended to married couples violates the European Convention on Human Rights.
Ironically, since Russia withdrew from the Council of Europe on March 16, 2022, and ceased to be a party to the Convention on Human Rights on September 16, 2022, the ECHR’s ruling will not be binding on Russia going forward, but there are 15 other European countries that do not currently provide any legal recognition for same-sex couples. The ECHR concluded that it had jurisdiction in this case because the same-sex couples who brought the case applied for recognition of their relationships years ago when Russia was a party to the Convention.
The ECJ case involves a dispute between a gay man, identified by the court as JK, and TP, a company that operates a nationwide public television channel in Poland, and which is wholly owned by the Polish State Treasury. JK, working as an independent contractor, performed two one-week shifts each month for TP’s Channel 1 Editorial and Promotional Office, preparing audiovisual materials, trailers or features for TP’s promotional programs. In the fall of 2017, TP was planning a reorganization that would transfer the tasks JK was performing to a new unit, and at a work meeting in October, “it was indicated that the applicant [JK] was among the associates who had been positively evaluated with a view to that reorganization,” according to the court’s summary of the facts. On November 20, he was contracted for two one-week shifts in the new role for December.
On December 4, he and his same-sex partner published on their YouTube channel a Christmas video “promoting tolerance towards same-sex couples.” On December 6, his supervisor informed him that his shift scheduled to begin December 7 was cancelled, and later he was informed that his shift scheduled to start December 21 was also cancelled. He was not offered any more contract work by TP.
JK sued for sexual orientation discrimination in the Warsaw District Court, seeking payment for the cancelled shifts and resumption of his relationship with TP. TP moved to dismiss the case, saying that European law on discrimination only applied to employment relationships, not to this kind of independent contractor work. The Warsaw court expressed doubt about whether Polish law and European Community law provided a legal claim for somebody in JK’s position, and applied to the ECJ for an interpretation of the European law.
After a detailed review of European equality law, the ECJ concluded that the relevant European Community provision “must be interpreted as precluding national legislation which has the effect of excluding, on the basis of freedom of choice of contracting parties, from the protection against discrimination… the refusal, based on the sexual orientation of a person, to conclude or renew with that person a contract concerning the performance of specific work by that person in the context of the pursuit of a self-employed activity.”
In this sense, European law is more expansive than anti-discrimination law in the US which, to the extent it prohibits employment discrimination because of a person’s sexual orientation under Title VII of the Civil Rights Act of 1964 (by virtue of the Supreme Court’s 2020 decision in Bostock v. Clayton County), applies only to traditional employer-employee relationships. Almost all state and local anti-discrimination laws in the US are similarly limited regarding sex, sexual orientation, or gender identity claims. By contrast, independent contractor claims for race discrimination can be asserted under Section 1981, a statute passed as part of a package of civil rights laws after the Civil War, which prohibits race discrimination in contracting.
The ECHR ruling in Fedotova and Others v. Russia involves three Russian same-sex couples who sought to register their marriages and were turned down by local registries. They filed suit, pointing out that Russian law provided no way for same-sex couples to obtain legal recognition of their family status, and argued that this was contrary to three articles of the European Convention on Human Rights: Article 8 (respect for private life), Article 12 (right to marry), and Article 14 (equality) when taken in connection with Article 8. A chamber of the court found their complaint “inadmissible” under Article 12, whose wording had previously led the ECHR to conclude that same-sex couples do not have a right to marry under the ECHR due to the gendered nature of the article’s language.
However, in prior rulings, the ECHR has concluded based on an emerging consensus of European states that “respect for private life” and protection for “family life” encompass same-sex relationships, requiring those states who are parties to the convention to provide some mechanism for recognition of same-sex relationships.
Russia argued that since the couples did not have a right under the convention to marry, the case should be over because they only applied to register marriages, but the seven-judge chamber that considered the case said that Russia violated Article 8 by failing to provide any legal recognition for same-sex couples. Russia asked that the case be considered by a “Grand Chamber” of the Court. The Grand Chamber to which the case was referred and which issued its decision on January 17 has 17 judges.
An overwhelming majority of the Grand Chamber judges agreed with the earlier ruling that the same-sex couples in this case had been deprived of their right to recognition of their relationships in violation of Article 8, and also agreed with the earlier ruling that there was no need to resort to Article 14 in this case, as it could be resolved in favor of the couples under Article 8.
The ECHR takes note of the practices of convention parties to adopt consensus opinions on the application of convention requirements. In this case, they found that 30 of the member states provide some legal recognition for same-sex couples. Eighteen states have opened up marriage to same-sex couples, while twelve provide alternative forms of legal partnership with many — although not all — marital rights. The court noted that of the 18 marriage equality states, eight also offer same-sex couples other forms of recognition for those who do not wish to contract marriages.
The Russian Federation, which withdrew from the Council of Europe and the Convention during 2022, and the remaining 16 states provide no mechanism for same-sex couples to obtain legal recognition of their relationships. With Russia out, the Grand Chamber’s decision is most significant for the remaining 16, who are now clearly under a mandate to provide some method of legal recognition for same-sex couples in their countries.
The court notes that both “private life” and “family life” are expressly protection in Article 8. “In the present case,” wrote the ECHR, “the Court accepts that the unavailability of a legal regime for recognition and protection of same-sex couples affect both the personal and social identity of the applicants as homosexual people wishing to have their relationships as couples legitimized and protect by law.”
It continued, “The Court has subsequently confirmed on several occasions that Article 8 of the Convention was applicable under both its ‘private life’ and ‘family life’ aspects in cases concerning the alleged lack of legal recognition and/or protection for same-sex couples,” in cases involving Italy, Croatia, France, and Italy.
“States parties have a positive obligation to provide legal recognition and protection to same-sex couples,” said the court, as this is “in line with the tangible and ongoing evolution of the States Parties’ domestic legislation and of international law. The court reiterates that the convention is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today. Since the convention is first and foremost a system for the protection of human rights, the court must have regard to the changing conditions in Contracting States and respond, for example, to any evolving convergence as to the standards to be achieved… A failure by the court to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement.”
Thus, the ECHR implicitly rejects the path that the US Supreme Court majority embraced last year in Dobbs v. Jackson Women’s Health Organization, under which the meaning of constitutional provisions is held to be frozen into conditions existing when the constitutional provisions were adopted. Explains the ECHR, “what may have been regarded as ‘permissible and normal’ at the time when the Convention was drafted may subsequently prove to be incompatible with it. As far as the present case is concerned, the court has taken note, through its case-law, of an ongoing trend toward legal recognition and protection of same-sex couples in the States Parties.”
“This interpretation of Article 8 of the convention is guided by the concern to ensure effective protection of the private and family life of homosexual people. It is also in keeping with the values of the ‘democratic society’ promoted by the Convention, foremost among which are pluralism, tolerance and broadmindedness.” The court also commented that “it is important that the protection afforded by states parties to same-sex couples should be adequate. In this connection, the court has already had occasion to refer in certain judgments to aspects, in particular material (maintenance, taxation, or inheritance) or moral (rights and duties in mutual assistance), that are integral to life as a couple and would benefit from being regulated within a legal framework available to same-sex couples.”
The court concluded that at the time the couples in this case applied to register their marriages, Russia was a state party to the convention and provided no mechanism for same-sex couples to obtain legal recognition for their relationships. Thus, Russia was violating their convention rights, and the same is true of the state parties that currently fail to provide such a mechanism.
The decision on Article 8 was not unanimous. Dissenting votes came from judges from Poland and Russia. (Although Russia is no longer a state party, a Russian judge who had been elected to the court was participating in this decision). A judge from Slovakia agreed with the interpretation of Article 8 but disagreed with allowing the Russian judge to participate, so they dissented from the court’s statement that the Grand Chamber was appropriately constituted to include that judge. Judges from Albania and Romania dissented from the court’s determination that it was not necessary to consider Article 14, although they agreed with finding a violation of Article 8. The other members of the Grand Chamber for this case came from Iceland, Denmark, Ireland, Luxemburg, Slovenia, Serbia, Bulgaria, Armenia, Monaco, Andorra, the UK (which is still, despite Brexit, a state party to the convention), and Belgium.
Finally, in some late breaking news, the Associated Press reported on January 17 that the Senate of the Netherlands approved an amendment to Article 1 of that country’s constitution, adding sexual orientation and disability to prohibited grounds of discrimination. As amended, this article mandates that all people in the country (not just citizens) must be treated equally and that “discrimination on the basis of religion, belief, political opinion, race, gender, disability, sexual orientation, or on any other basis is not allowed.” The Netherlands, incidentally, was the first nation in the world to legalize same-sex marriages, in 2001. The vote in the 75-member Senate on this new amendment was 56-15.