X. and Others v Austria
by Paul Johnson
On 19th February 2013, the Grand Chamber of the European Court of Human Rights issued an important judgment in respect of a complaint about discrimination on the grounds of sexual orientation in second parent (step parent) adoption. In X. and Others v Austria three applicants, a female same-sex couple and the biological child of one of the partners, complained that their legal exclusion from second parent adoption constituted discrimination contrary to Articles 8 and 14 of the ECHR.
Second parent adoption is available to married and unmarried opposite-sex couples in Austria, but unavailable to same-sex couples because of Article 182(2) of the Civil Code (which requires second parent adoption to be formed within opposite-sex couples). The complaint inX. and Others v Austria is different to the complaints brought in previous adoption cases concerning sexual orientation heard by the Court which concerned discrimination in adoption by single individuals (Fretté v France; E.B. v France) and discrimination between opposite-sex married couples and same-sex couples in civil partnerships (Gas and Dubois v France). In the present case, the key complaint was that same-sex couples were differentiated from both unmarried and married opposite-sex couples.
The background to the complaint was the refusal by the domestic Austrian courts to allow one of the applicants (the first applicant) to adopt the biological child (the second applicant) of her partner (the third applicant). Whilst the proceedings in the domestic courts were lengthy and encompassed a number of important issues – not least, the refusal of the child’s biological father to consent to the adoption – the consistent complaint advanced by the applicants was a principled objection to the existence of Article 182(2) of the Civil Code. Their complaint to the Court was about the blanket exclusion of same-sex couples from second parent adoption by Article 182(2) rather than about any aspect of the merits of their individual adoption application.
The Court held by a majority (ten to seven) that there had been a violation of Article 14 taken in conjunction with Article 8 of the Convention on account of the difference in treatment of the applicants in comparison with unmarried opposite-sex couples in which one partner wished to adopt the other partner’s child; and, unanimously, that there had been no violation of Article 14 taken in conjunction with Article 8 when the applicants’ situation was compared with that of a married couple in which one spouse wished to adopt the other spouse’s child.
There are a number of interesting facets to the judgment, and I will concentrate only on three issues here.
Consistent application of existing jurisprudence on sexual orientation discrimination
The key reason why the complaint succeeded in the Court was the applicants’ comparison of their family life with that of unmarried opposite-sex couples. In applying its standard ‘tests’ to determine whether a difference in treatment amounts to discrimination under Article 14, the Court accepted that the applicants were in an analogous position with an unmarried opposite-sex couple, that there was ‘no doubt that the applicable legislation leads to a distinction between unmarried different-sex and same-sex couples in respect of second-parent adoption’ (§ 116), and that the ‘difference was inseparably linked to the fact that the first and third applicants formed a same-sex couple, and was thus based on their sexual orientation’ (§ 130). The Court reiterated its now established case law that differences based on sexual orientation require particularly serious reasons by way of justification, that where a difference of treatment is based on sexual orientation a State’s margin of appreciation is narrow, and emphasized (a point which is sometimes explicitly missing from its judgments) that differences based solely on considerations of sexual orientation are unacceptable under the Convention.
The chief focus of the Court’s judgment is on the fact that ‘the applicants were directly affected by the law complained of’ (§ 126) and the major substance of its review is directed to the ‘narrowly defined issue of alleged discrimination between unmarried different-sex couples and same-sex couples in respect of second-parent adoption’ (§ 134). This approach was criticized by the seven dissenting judges who argued that the Court’s consideration of the impugned legislation was inappropriately abstract and failed to pay sufficient attention to the substantive issues involved in the adoption case at hand (such as the best interests of the child). Another point of criticism advanced by the dissenters was that the Court had inappropriately employed its ‘living instrument’ doctrine to reach a judgment that went ‘beyond the usual limits of the evolutive method of interpretation’. This claim may have been encouraged by the fact that, whilst the Court stated that it was ‘not called upon to rule on the issue of second-parent adoption by same-sex couples as such, let alone on the question of adoption by same-sex couples in general’ (§ 134), it did make a number of striking remarks, such as ‘the Austrian legislation appears to lack coherence’ (§ 144), which implicitly urge wide reform. Yet, in respect of the issue concerned – the existence of legislation that differentiates between unmarried same-sex and opposite-sex couples – the Court’s approach to its review and the judgment it reached are consistent with its established case law on discrimination on the grounds of sexual orientation.
Reassertion of a heteronormative view of marriage
Aside from the view expressed by Judge Spielmann in his concurring opinion – in which he re-stated his argument first expressed in Gas and Dubois v France that unmarried same-sex couples are in a comparable position to opposite-sex married couples but, lamentably, went on to conclude that he did not feel it necessary to examine the issue – the Court unanimously determined that unmarried same-sex couples are not in a comparable position to married opposite-sex couples and, therefore, are not discriminated against when they are denied legal rights reserved for married couples. The Court stated that it found it ‘appropriate to repeat and confirm’ its view that ‘Article 12 of the Convention does not impose an obligation on the Contracting States to grant same-sex couples access to marriage’, ‘[n]or can a right to same-sex marriage be derived from Article 14 taken in conjunction with Article 8’, that ‘[w]here a State chooses to provide same-sex couples with an alternative means of legal recognition, it enjoys a certain margin of appreciation as regards the exact status conferred’, and that ‘marriage confers a special status on those who enter into it’ (§ 106). The significant emphasis on this interpretation of Article 12 in the judgment, and the unanimous agreement on this line of reasoning, is a clear sign that the Court intends no evolution in its case law on same-sex marriage in the near future.
As I have argued elsewhere, the margin of appreciation granted by the Court to contracting states to maintain the heterosexual exclusivity of marriage under Article 12 perpetuates a wide range of discrimination suffered by same-sex couples and their families. Gay men and lesbians cannot complain under Article 14 about discrimination that results from being outside the ‘special status’ of marriage because such exclusion is permitted under Article 12. Given that same-sex couples are excluded from marriage in the majority of Contracting States, and therefore cannot gain access the legal rights associated with marriage, the Court effectively underwrites Contracting States’ ability to maintain forms of discrimination solely on the grounds of sexual orientation. The Court’s apology for discrimination on the grounds of sexual orientation in respect of marriage flies in the face of the conclusions reached by the highest courts of other jurisdictions, such as South Africa, which argue that it is precisely because of the ‘special status’ of marriage that makes differential treatment on the grounds of sexual orientation in relation to it one of the most pernicious form of discrimination in contemporary societies. One day it will become common to look back on the Court's restrictive heteronormative interpretation of Article 12 with the same mix of incredulity and horror that is produced when reading statements like ‘the Convention permits a High Contracting Party to legislate to make homosexuality a punishable offence’ (W.B. v Germany, 1955).
The approach to consensus analysis
The Court’s approach to consensus analysis in this case exemplifies and explicates all that is problematic about this aspect of the Court's methodology. I have argued elsewhere that the Court’s judgments show that consensus analysis is a device through which ‘reality’ is selectively represented in order to add weight to its moral reasoning. The Court does not fabricate or ‘make up’ consensus but what counts as consensus is always significantly influenced by the moral standpoints adopted by the judges sitting in each individual case.
The question of consensus was particular prominent in this case because the Austrian government had asserted that Contracting States should have a wide margin of appreciation on the issue of second parent adoption by same-sex couples given that only ten Council of Europe member States permit it and, consequently, there is no European consensus. The Court dismissed this claim by arguing that the only relevant sample on which to base an analysis of consensus was of those ten states that permit second parent adoption by unmarried couples, six of which treat opposite-sex couples and same-sex couples in the same manner and four who adopt the same position as Austria. By adopting this narrow sample of states as the basis for consensus analysis the majority was able to claim that ‘no conclusions can be drawn as to the existence of a possible consensus among Council of Europe member States’. I have some sympathy with the dissenters’ claim that this conclusion is ‘to say the least, curious’ because ‘the States in question are sharply divided and that there is therefore no consensus’. Furthermore, I think it understandable that the dissenters argued that the ‘somewhat strange reasoning’ of the majority ‘is explained by the fact that the method used may in reality not be the right one’.
This argument over the appropriateness of the sample is understandable if one accepts that the majority selected a sample in order to, as the dissenters argue, disregard ‘a clear trend whereby the great majority of the States Parties currently do not authorise second-parent adoption for unmarried couples in general, still less for unmarried same-sex couples’. The dissenters call the majority’s choice of sample ‘unduly technical – and hence reductive’ but I think a better description of it would be ‘expedient’. This is not to say that I agree with the dissenters’ argument that it would have been more ‘appropriate and simpler to speak in terms of a “trend”’ – a view that ultimately underpins their judgment that the absence of any consensus in international law should have prevented the applicants’ from bringing a successful complaint under the Convention. Rather, my point is that the Court would be better to dispense with the issue of consensus altogether in cases such as this and apply the established principle that when it comes to issues of discrimination on the grounds of sexual orientation under Article 14 a State’s margin of appreciation is narrow and that, therefore, the practice of other Contracting States is of little concern. This would reduce the uncertainty and variability that consensus analysis produces in the Court’s approach – after all, had two of the majority joined the dissenters in their view that a ‘trend’ approach was preferable to the ‘narrow’ sample selected, the outcome of the judgment would have been different – and remove the need to consider majoritarian practice when examining alleged violations of the fundamental rights of minority groups.
A good judgment?
The Court’s judgment must ultimately be regarded as positive because it recognizes that laws in Austria and other Contracting States that currently exclude same-sex couples from second parent adoption whilst affording it to unmarried opposite-sex couples create discrimination in violation of Convention rights. These Contracting States will be required to amend legislation that is now in breach of the Convention. Such incremental advances in ending discrimination against gay men and lesbian are always very welcome.
Yet the judgment, as is so often the case with judgments issued by the Court in respect of sexual orientation complaints, is also problematic for a number of reasons. A central concern must be the strong restatement of the principle that the differential treatment of unmarried same-sex couples and opposite-sex married couples will not amount to discrimination under the Convention. This leaves Contracting States free to maintain a situation in which only heterosexual couples have access to marriage and, consequently, to the wide range of legal rights that flow from it.
X. and Others v Austria therefore represents a significant evolution of the principle of non-discrimination in respect of sexual orientation between unmarried couples, whilst further legitimizing and protecting the discrimination that results from the exclusion of gay men and lesbians from marriage.
