In his Reith Lecture, “Human Rights and Wrongs,” Jonathan Sumption argues that the European Court of Human Rights (ECtHR) has overstepped its boundaries. He believes the court continuously expands its interpretation of the European Convention on Human Rights, creating new rights and encroaching on areas that should be determined by elected officials.

Sumption has raised similar concerns previously, stating in 2016 that the ECtHR is at the forefront of creating fundamental law that goes beyond the original text of the Convention. His argument aligns with the belief held by some politicians that ECtHR judges regularly overreach their authority, forcing changes to UK law and interfering in domestic matters under the guise of human rights.

Individuals who identify as gay or lesbian might find Sumption’s comments particularly irritating. This is likely because while the ECtHR has played a crucial role in advancing legal changes to combat sexual orientation discrimination in the UK, it has also often disappointed the LGBTQ+ community by interpreting the Convention conservatively and rejecting complaints related to such discrimination.

When it comes to matters of sexual orientation, the ECtHR’s approach to interpreting the Convention has been characterized by restraint rather than activism. While Sumption suggests that the Court invents mechanisms, such as the “living instrument” doctrine, to grant rights liberally, the truth is that it generally exercises caution when evolving its understanding of the Convention. This cautious approach has frequently proven detrimental and frustrating in cases concerning sexual orientation discrimination.

Consider the criminalization of private, consensual same-sex sexual acts between adults. Although no longer present in Europe, this practice was in effect in several countries when the Convention came into force. In 1955, a man imprisoned in Germany on charges of “homosexuality” under a law established by the Nazi party brought a complaint to the ECtHR. The Court rejected his claim, stating that Article 8 of the Convention, which guarantees the right to respect for private life (and which Sumption believes has been distorted beyond recognition), allowed states to criminalize homosexuality.

It took 26 years for the ECtHR to reverse its stance. In the landmark case brought by Jeffrey Dudgeon, the Court ruled that the complete criminalization of same-sex sexual acts in Northern Ireland violated Article 8. However, even in 1981, the ECtHR saw no issue with the UK maintaining a higher age of consent for same-sex sexual acts. It was only after Euan Sutherland filed a complaint in the late 1990s that the ECtHR acknowledged that a disparate “age of consent” violated the Convention.

Nearly every instance of sexual orientation discrimination brought before the Court has followed a similar trajectory. Complaints are repeatedly dismissed until the ECtHR finally recognizes an additional aspect of “gay rights” under the Convention. This pattern reflects the Court’s inherently cautious nature. As Judge Sicilianos has noted, the ECtHR aims to avoid its evolving interpretation of the Convention being perceived as a free pass to excessively reinterpret the text. The Court avoids this by employing interpretative mechanisms that consider both the original intentions behind the Convention and the present-day context in which it operates.

One such mechanism involves taking into account the European consensus on specific issues, allowing the Court to be guided by current societal conditions rather than imposing its own views. This restrained approach, however, often negatively impacts gay men and lesbians. The most striking current example is the Court’s persistent refusal to recognize that the right to marry, as enshrined in the Convention, obliges states to grant same-sex couples access to marriage.

Contrary to Sumption’s portrayal of the Court, it has firmly resisted interpreting the right to marry in a way that would establish same-sex marriage as a fundamental human right. Consequently, the Court’s current position renders the Convention irrelevant for same-sex couples denied marriage rights in European countries, including parts of the UK.

Sumption’s assertions that the ECtHR is usurping state power and interfering in matters best left to governments and voters are not only inaccurate but, for some, represent a frustrating reality. Gay and lesbian individuals residing in European countries where they lack basic rights, face severe discrimination, and are at the mercy of a majority resistant to legal change through parliamentary means often turn to the ECtHR for support.

Unfortunately, because the ECtHR often operates in a manner contrary to Sumption’s description, it frequently hesitates to extend the Convention’s protections to gay men and lesbians in ways that challenge discriminatory domestic laws. Put simply, when LGBTQ+ individuals seek assistance from the ECtHR, their pleas often go unanswered.

The ECtHR serves as the conscience of Europe, interpreting a Convention founded on the commitment to upholding and advancing human rights. To truly advance these rights, the Court must evolve its interpretation of the Convention and should be encouraged to do so.

We, the “everyone” whose human rights and fundamental freedoms the Convention aims to protect, must demand, encourage, and support the Court in interpreting the Convention in ways that challenge existing inequalities and discrimination across Europe. Sumption’s belief that human rights law should primarily steer clear of deciding sensitive issues best left to the ballot box is misguided.

This view promotes caution within the ECtHR; on the contrary, we should be urging the Court to boldly pursue a vision where human rights law prevails in Europe.

Listen to some of the gay men and lesbians from the UK who have taken cases to Strasbourg here: https://goingtostrasbourg.com/podcast

Barnard & Peers: chapter 9, chapter 20

Photo credit: ECHR Sexual Orientation Blog