Human rights versus the traditional family: Implications of the European Court of Human Rights' standard of review in cases concerning Articles 8 and 12

Abstract: Against the background of a conservative push against LGBTI+ and women’s rights, in which courts have already become battlefields, it is important to look at how the European Court of Human Rights, a leading human rights adjudicator both in Europe and globally, would respond to arguments made in the name of human rights but whose real purpose is to limit the rights and freedoms of women and LGBTI+ people. One such argument that has so far been successfully used is the protection of the “traditional family” or “traditional marriage”. In this thesis, I will assess the Court’s standard of review in cases concerning Articles 8 and 12 of the European Convention on Human Rights, protecting private and family life and the right to marry and where such an argument is presented, and its implications to women’s and LGBTI+ rights. “Traditional marriage” and “traditional family” are often used as a hailed or at least neutral concept, but studies show that they have deeply oppressive roots and their promotion is harmful. I have identified three main groups of cases divided by topic: transgender persons and the right to marry, the protection of same-sex relationships, and cases concerning gender equality and other issues. I assess how consistently the Court uses its established methodologies and principles, as well as applying criticisms drawing from feminist and queer legal theory. It transpires that the Court’s standard of review varies depending on the type of case it is assessing. Cases in which the heterosexuality of marriage is directly challenged are scrutinized leniently, while in cases that don’t challenge it, and especially in cases that concern gender equality, the Court applies a much stricter scrutiny. This implies that its standard of review especially on the issue of same-sex marriage is toothless against conservative attempts to halt the progress in this field, unless the Court changes its approach. It already has the tools of strict review, but it appears remarkably reluctant to use them in cases concerning the right of same-sex couples to marry.