LGBT+ Rights

Article 3 issues may arise if the State fails to protect people from violent hate crime.

An LGBT charity in Georgia held a peaceful protest in the capital city to mark the International Day Against Homophobia. Two religious groups and around a hundred other people turned up to counter-protest. They surrounded members of the LGBT charity and threatened and insulted them before physically assaulting them. A bystander asked the police to intervene but he was put in a police car and detained at the station. The police said they did this to protect him from the counter-protestors. The European Court of Human Rights said that the police had failed to meet their positive obligations to protect the LGBT group members from inhuman or degrading treatment, and failed to carry out an investigation into the incidents afterwards, which breached their Article 3 rights.

Article 8 issues may arise if decision-makers don't respect the rights of same-sex couples in the same way as those of opposite-sex couples without good reason.

Juan was sharing a flat with his boyfriend, Hugh. The flat was rented in Hugh’s name and he had a protected tenancy, which meant he couldn’t be evicted from his flat as long as he paid rent. The Rent Act 1977 says that if a protected tenant is married or living with a partner in the same way they would a wife or husband, then if the protected tenant dies, the tenancy passes automatically to their spouse or partner. However, when Hugh died, his landlord tried to evict Juan, saying that he wasn’t living with Hugh as he would a husband because they were both men. Juan argued that this interpretation of the Rent Act would discriminatorily interfere with his right to private and family life as a gay man in breach of Article 8 and Article 14. The Court agreed, saying Section 3 of the Human Rights Act means laws should be interpreted compatibly with human rights wherever possible and the Rent Act should apply to unmarried same-sex couples in the same way as unmarried opposite-sex couples. This meant that Juan was living with Hugh in the way he would live with a husband and was allowed to take over the tenancy.

Article 12 issues may arise if couples are unfairly prevented from getting married.

Christine was a trans woman who brought a claim against the UK for failing to take steps to change the law so trans people who have been through gender-affirming surgery could change their legal sex. Because she was considered a man under the law, and there was no recognition of same-sex marriage at the time, she could not marry a man. At that time, men and women could also access their pension at different ages – men at 65 and women at 60 – but she could not access her pension until she was 65. The court considered previous judgments that had said there was no positive obligation on states to recognise a change in legal sex but then said the Court must “have regard to the changing conditions” and “maintain a dynamic and evolutive approach”. This is known as the living instrument principle. The court said that where the state, under the NHS, authorised and assisted in gender-affirming surgery, it was illogical to then refuse to recognise the change in sex under the law.  It held that Christine’s Article 8 right to private life and Article 12 right to marry had been breached. This case contributed to the introduction of the Gender Recognition Act 2004 which enables people to change their legal sex (whether or not they have undergone any gender-affirming surgery).

Article 14 issues may arise if people are disadvantaged because of their sexual orientation without good reason.

JM was a mother of two children. She divorced her husband, who became the primary carer for the children, and she paid child support. JM began a relationship with a woman and they moved in together. At that time, when a parent entered a relationship with an opposite-sex partner, their child support payments would be reduced. However, because JM’s relationship was with a same-sex partner, it wasn’t recognised and her payments weren’t reduced. If she had been in a relationship with a man, she would have paid £14 per week whereas while in a relationship with a woman, she had to pay £47 per week. The Court held that this breached her Article 1, Protocol 1 right to peaceful enjoyment of possessions along with her Article 14 right to be free from discrimination.

Article 2, Protocol 1 issues may arise if schools only teach one point of view without offering adequate alternatives.

A seven-year-old girl and her father, G, asked the court to review Religious Education and Collective Worship (RECW) teaching in primary schools Northern Ireland. They were not religious and G was concerned that his daughter was being taught Christianity (and no alternative viewpoints) at school. G said he was concerned about “long-standing and continued discrimination by the main churches against LGBT people in Northern Ireland and I do not want my daughter to be taught that such intolerant and potentially harmful beliefs are true”. The school said his daughter could opt out of RECW but there was no alternative option and her father was worried this would exclude her. The Court said that the Article 2, Protocol 1 right to education includes a respect for pluralism (the existence of different beliefs) and the lack of an alternative to RECW breached this right.