Abstract
This article examines a recent judgment by the European Court of Human Rights (E.B. v France) that upheld the complaint of a homosexual woman who alleged that her application for authorization to adopt a child had been refused by domestic French authorities on the grounds of her sexual orientation. I argue that the judgment constitutes an innovative and atypical legal consideration of, and challenge to, the heteronormative social relations of contemporary European societies. After exploring the evidence presented by the applicant, and the Court’s interpretation of it, I argue that in order to reach its judgment it was necessary for the Court to make a significant departure from its established jurisprudence in relation to sexual orientation. An essential element of this involved the adoption of a distinctive critical approach, strongly resonant with aspects of ‘queer theory’, which focused attention on the social, cultural and political construction of normative heterosexuality. Whilst a number of commentators have assessed the importance of the judgment in terms of its evolution of ‘gay rights’ in the area of family life, I argue that the Court’s reconceptualized ‘theoretical’ understanding of, and critical approach to, heteronormativity offers the potential to expand the scope of the European Convention on Human Rights across a number of areas of social life—in marriage, public assembly, freedom of expression, as well as family life—where non-heterosexuals continue to face discrimination in contemporary Europe.
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Notes
Article 14 of the Convention states: ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’.
Article 8(1) of the Convention states: ‘Everyone has the right to respect for his private and family life, his home and his correspondence’.
For a recent history of this case law see Johnson (2010) which examines 27 judgments of the Court, delivered between 1976 and 2008, that concern a wide range of complaints brought in relation to sexual orientation. For additional commentaries and analysis of the Court’s approach to sexual orientation see: Moran (1996), Stychin (2003), and Wintemute (1995).
Providing evidence of an explicit focus on an applicant’s homosexuality by a public authority has now become the central basis for complaints under Article 14 because the Court has stated that ‘if the reasons advanced for a difference in treatment were based solely on the applicant’s sexual orientation, this would amount to discrimination under the Convention’ (Kozak v Poland, Application no. 13102/02, Judgment of 2 March 2010).
By the standard of the Court’s published judgments, E.B. contains an unusually large number of separate opinions. There are five separate opinions annexed after the majority judgment: one concurring, and four dissenting. Of the four dissenting opinions, there is one group opinion (by Judge Costa joined by Judges Türmen, Ugrekhelidze and Jočienė) and three individual opinions (by Judge Zupančič, Judge Loucaides, Judge Mularoni). As I show throughout this article, the opinions of these dissenting judges provide an important counterpoint to the majority and help illuminate how the Court reached its judgment. However, the dissenting opinions should not be regarded as a homogenous set of views but rather, as Boussiakou and White (2009) argue, as expressions of the heterogeneous ‘judicial temperaments’ and ‘values’ of the individual judges. I discuss these dissenting opinions throughout the article but summarize their key arguments here to show that they are not necessarily all (or uniformly) ‘homophobic’. The opinion of Judge Costa and his colleagues was that, whilst they supported in principle the applicant’s claim that a person seeking to adopt should not be prevented from doing so merely on the ground of their sexual orientation, they could find no evidence in the ‘facts’ to suggest that sexual orientation was the decisive ground on which Ms. B.’s application had been refused. Judge Zupančič also disputed the evidential grounds for the complaint, but disagreed in principle with the view that homosexuals had a ‘right’ not be discriminated against because adoption is not recognized under the Convention as a ‘right’ but is regarded as a ‘privilege’. Judge Loucaides argued that while the facts showed that the domestic authorities had not refused Ms. B.’s application on the grounds of sexual orientation, if this had been a factor then the applicant’s complaint should not have been deemed admissible because her sexual orientation made her incompatible with ‘certain activities’ that, by their nature, are incompatible with a homosexual ‘lifestyle’. Finally, Judge Mularoni argued that the grounds offered by the domestic authorities were sufficient and relevant for refusing Ms. B’s application because, although he could find no evidence in the facts to support her claim that her sexual orientation was the decisive ground on which she had been refused, it was appropriate for the ‘personality and attitude’ of the applicant and her partner ‘to be taken into account by the authorities’.
For a sustained critique of the idea that heterosexuality is the outcome of ‘natural’ sex differences between men and women see Butler’s (1990) account of how the ‘heterosexual matrix’ is itself productive of the ontology of gender and sex difference.
Rich argues that there is a ‘silence’ in contemporary societies in relation to heterosexuality so that, instead of speaking about heterosexuality as a social and political construction and mode of organization, it is a ‘taken for granted’ aspect of social life. Similarly, other commentators have argued that heterosexuality is a ‘silent’ identity that goes largely unnamed in social life because it is hegemonically understood to be the ‘normal’ way of being human (for example: Wilkinson and Kitzinger 1993).
Article 343-1 of the Civil Code states that ‘any person over twenty-eight years of age’ may apply to adopt a child.
Judge Loucaides reiterated this view, in his dissenting opinion, in a more candidly homophobic way: ‘I believe that the erotic relationship with its inevitable manifestations and the couple’s conduct towards each other in the home could legitimately be taken into account as a negative factor in the environment in which the adopted child was expected to live. Indeed there was, in these circumstances, a real risk that the model and image of a family in the context of which the child would have to live and develop his/her personality would be distorted’ (E.B. v France, dissenting opinion of Judge Loucaides).
There is now a significant body of academic work that critically analyzes how the ‘child welfare’ discourses utilized by professionals, whilst often emphasizing a non-discriminatory approach to assessing the suitability of applicants for adoption, are founded upon a range of heteronormative assumptions. For example, Hicks (2001) shows how fostering and adoption professionals reiterate a series of assumptions about the ‘fitness’ of applicants that rely upon heteronormative ideas about particular gender and sexuality ‘roles’ that are vital for children’s development. Hicks argues that ‘the lesbian’ is frequently constructed as a ‘threat’, as ‘militant’, or as ‘safe’ in assessments, and that only certain types of homosexuals are likely to be approved to foster or adopt—those ‘good lesbians’ that approximate heteronormative ways of behaving.
If that was the question then it could have been answered in relation to a consideration of how forms of ‘indirect discrimination’ arise when particular individuals or groups cannot meet criteria adopted for assessing applications. However, Ms. B.’s application went beyond a consideration of indirect discrimination because it alleged that a direct concern for her sexual orientation, whilst not made explicit, was decisive to the decision-making of the domestic authorities.
The Convention is regarded by the Court as a ‘living instrument’ that becomes subject to reinterpretation ‘in the light of present-day conditions’ (Tyrer v United Kingdom, A 26 (1978); 2 EHRR1, para.31). As Mowbray has argued, the ‘living instrument’ doctrine has enabled the Court to update its interpretation of a number of Convention Articles in light of social, legal, and economic changes (2005, p. 69). Mowbray (2005) provides an excellent overview of the ways in which the Court has ‘creatively’ interpreted the Articles of the Convention across a varied range of complaints.
The existence of Article 343-1 of the French Civil Code, which allows ‘any person’ to apply to adopt a child, was decisive to the Court’s decision to deem the complaint within the ambit of Article 8 for the purposes of Article 14. Without Article 343-1 the application would certainly have been deemed inadmissible on the grounds that Article 8 does not provide any right to adoption. The Court stated: ‘The present case does not concern adoption by a couple or by the same-sex partner of a biological parent, but solely adoption by a single person. Whilst Article 8 of the Convention is silent as to this question, the Court notes that French legislation expressly grants single persons the right to apply for authorisation to adopt and establishes a procedure to that end. Accordingly, the Court considers that the facts of this case undoubtedly fall within the ambit of Article 8 of the Convention. Consequently, the State, which has gone beyond its obligations under Article 8 in creating such a right […] cannot, in the application of that right, take discriminatory measures within the meaning of Article 14’ (E.B. v France, para. 49).
The Court was not willing to recognize the complaint as admissible under the ‘family life’ component of Article 8. In a more recent development (Schalk and Kopf v Austria, Application no. 30141/04, Judgment of 24 June 2010) the Court has recognized that same-sex partnerships fall within the ambit of ‘family life’ but it remains to be seen what impact this will have on the rights of homosexuals (either as single individuals or same-sex couples) seeking to adopt a child.
Article 7(1) states that ‘The law shall permit a child to be adopted […] by two persons of different sex’ or ‘by one person’. Article 7(2) introduces the following provision: ‘States are free to extend the scope of this Convention to same sex couples who are married to each other or who have entered into a registered partnership together’. European Convention on the Adoption of Children (Revised), Strasbourg, 27.XI.2008.
The significance of the recognition that the Court gives to non-heteronormative family formations in E.B. should not be underestimated. Given that Ms. B. and her partner did not present a joint application to adopt a child as a ‘couple’, the Court can be seen to acknowledge family formations outside of the normative ideal of the monogamous, two-parent family. The judgment suggests that the Court accepts that the demand of non-heterosexuals, to be recognized as capable of establishing families, is one aspect of a plurality of family forms that exist in contemporary societies (Weeks, Heaphy and Donovan 2001).
At the time of writing, the Court already has a case pending (Chapin and Charpentier v. France, no. 40183/07) in which a same-sex couple will challenge the heteronormativity of Article 12. The applicants’ complaint is that their marriage, despite being conducted by the mayor of Bègles (France), was subsequently declared null and void by the domestic courts. E.B. provides the Court with a potentially powerful resource to underpin a ‘creative’ interpretation of Article 12 of the Convention ‘in light of present conditions’.
Considering the impact of the Court’s judgments is, by necessity, speculative since, as Keller and Sweet (2008) argue, there is no causal theory and only sparse empirical data on the impact of the Convention within contracting states.
I have argued elsewhere (Johnson 2010) that the Court’s discourse on homosexuality has established distinct ontological ideas about homosexuality and, as such, contributes to nothing short of the ongoing making of the ‘modern homosexual’.
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Johnson, P. Heteronormativity and the European Court of Human Rights. Law Critique 23, 43–66 (2012). https://doi.org/10.1007/s10978-011-9096-z
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DOI: https://doi.org/10.1007/s10978-011-9096-z