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Petra Sussner, a post-doctoral researcher at the Humboldt University of Berlin who also coordinates the DFG research project 'Claiming a Common World? Gender in Environmental Law and Climate Litigation' at the Center for Interdisciplinary Research at Bielefeld University, has written a quite interesting essay for the Völkerrechtsblog. Entitled, The Future of Sexual Orientation and Gender Identity in Human Rights: Where Will European Consensus Take Us?, the essay considers the state of power relationships, expressed as and through law, that serve as the way in which collectives impose certain rationalizations of the human body--or better put certain rationalizations of the way n which one considers the human body in the environment prepared and maintained for it by the state--and through the state, to social relations. Better put, in Dr. Susnner's words:
Over the last decades, the regulation of gender and sexuality has undergone major changes in Europe. From Athens to Reykjavik, same-sex unions are legal reality. States must no longer require surgical measures before they correct gender entries. So, is heteronormativity – the normative idea of binary and heterosexual gender hierarchies – still part of the bigger (legal) picture? (The Future of Sexual Orientation and Gender Identity)
To that ends, Dr. Sussner considers twp quite interesting cases--Affaire Y v. France (Requête no 76888/17), and Schalk and Kopf v. Austria (Application no. 30141/04)--"as examples to explore the negotiations of State’s obligations and European consensus in the area of gender and sexuality." (The Future of Sexual Orientation and Gender Identity).
Affaire Y v. France focused on the protection of rights for intersex persons. There are two aspects of this focus. The first touches on the protection of rights, the second is on the broader political-cultural issue of attacking socio-generative principles of hetero-normativity and thus affect the fundamental framework within which rights are understood and applied. Tat two prong focus of the discussion sometimes makes for sloppy analysis (e.g., "intersex people challenge (violent) heteronormative practices including medically unnecessary surgeries on children or compulsory binary gender registration."The Future of Sexual Orientation and Gender Identity)). In Affaire Y v. France, the complainant sought to challenge France's administrative assignment of Y as male. Y did not reject classification entirely (perhaps a more radical but conceptually stronger position in terms of limiting the rights of political authorities to interfere with the aut0nomous lives of its citizens) . Y merely sought to compel classification as "neutral" or "intersex." That request was denied by French authorities and eventually rationalized by a French court on two grounds: (1) the application of a perception standard and (2) an "effects" test of sorts, not focused on Y but on the integrity (as the authorities saw it) of the French legal system and the society managed thereunder. The perception standard was rejected by the ECtHR; the send was saved by application of the traditional rule of deference (the margins of appreciation standard) jurisprudence of the Court.
A similar approach in Schalk and Kopf v. Austria from a decade agao but here the issue was the positive obligation of a state to provide access to the state of marraige without regard to the sexual or gender identities of the parties. The case was related on the basis of its reliance on Goodwin v. United Kingdom where the court refused to apply the rule of deference under Art. 12 ECHR to exclude trans people in different-sex partnerships. The effirt was unsuccessful based on a more complicated (and polycentric) applicaiton of the f¡defe4rence rule of margins of appreciation:
Six out of 47 member States of the ECHR granted same-sex couples access to marriage (para. 58). So, in absence of a European consent, Member States were not obliged to provide for such access (also according to Art. 14 in conjunction with Art. 8 ECHR). However, in comparison with EU law, the Court also emphasized that the right to marry under Art. 9 of the Charter of Fundamental Rights of the European Union did not include a reference to “men and women”. Thus, this right would not “under all circumstances be limited to […] two persons of the opposite sex” (para. 61). (The Future of Sexual Orientation and Gender Identity)And it is in those decisions--affirming the role of deference rules as the core the constitutional managerial role of the European Convention and its jurisprudence--that Dr. Sussner suggests the politics of jurisprudence remains a strong defense against the evolution of the ECtHR into a more politically positive instrument of European socio-generative movement. And what stands in the way, in this case, is the insistence on reliance on the formative principles of hetero-normativitiy as the baseline against which deference is considered. " This exercise of restraint is not only connected through the interpretative approach of European consensus. It is also preconditioned by a perspective that centres heteronormativity in terms of heterosexual gender binary. This becomes apparent in comparison with the German FCC ruling." (The Future of Sexual Orientation and Gender Identity).
That leaves open the more fundamental question: what soial structres ought to be invoked where people within political-social collectives seek to transform (sometimes radically) the standard operating system of social relations and thus of its reflection in the political, legal, economic and cultural order maintained in and through states. In Marxist-Leninist states that answer would be simple--it is to be undertaken by the vanguard of social forces organized as a communist party through such process and means as that vanguard imposes. In theocracies, the answer is also simple: it is for the priestly caste, in their interpretation and invocation of the divine, through which such efforts must be undertaken and in and through which such interpretations (always consistent with the eternal word but subject to the vagaries of human perception) may be undertaken.
The matter is more complicated in liberal democratic states. Here its component parts produce the contradiction that is manifested in the ECtHR cases--the contradiction between liberal normativity and democratic foundations of the political order. Liberal normativity and its development lies at the foundation of the current efforts to interrogate the constitution of sex and gender--and its political-economic role in the organization of coercive political collectives. But the control of the narratives of liberal normativity do not speak to the systeic integrity at the foundation of the democratic part of liberal democracy. In that aspect, the political collective focuses on legitimacy and integrity, with an eye towards its fundamental obligation to serve the masses (however they are organized and expressed their individual desires through collective organization). Democratic legitimacy starts from the bottom--the autonomous individual--and works its way up. . . at least in theory. But theory is important here for preservation of the systemic legitimacy necessary to develop and ultimately successfully challenge hetero-normativity. And thus the power of margins of appreciation and rules of deference. It doe snot speak to the preservation of specific narratives of social relations--but to the process by which such transformations may in their turn be legitimated and eventually also challenged by what comes after. (discussed in “Inscribing Judicial Preferences into Our Basic Law: The Political Jurisprudence of European Margins of Appreciation As Constitutional Jurisprudence in the U.S.,” Tulsa Comparative & International Law Journal 7:327-373 (2000)).
The more interesting question, and the one raised by Dr, Sussner, is the extent to which current social narratives create structural barriers to the dialogue at the heart of the margins of appreciation doctrne. That is, that in this case hetero-normativity itself produces structural corruption of the sort that makes it impossible to effectively undertake the sort of consensus building at the Member State level at the heart of the doctrine. Dr. Sussner suggests that these impediments can be overcome , and certainly that appears to be the hope of ECtHR jurists. The real question, however, is both constitutional and political. And that is a question that remains to be answered, perhaps in different ways, as one generation fades into another. And yet, what Dr. Sussner lays at the feet of the European Court might be better situated within the naitona constitutional orders within which the Court's authority is bounded. Indeed, to the extent that structral impediments exist is ti precisely because within these constitutional orders, hetero-normativity is supposed to do just that; just as the replacement of hetero-normativity will create its own self protective structures buried deep within the normative structures of law, politics and culture. The stakes are high. But everyone knows that. The difficulty, as is always the case where a cultural fundamental is challenged, is that deeply embedded normativity will not give way merely because a force (to their own way of thinking a leading social force) insists that it must be so. The slow hard hard work of getting the masses to embrace fundamental cultural change--one that by its own terms eliminates the objection that its triumph will have tremendous consequences because indeed, that is its objective, in a democratic society is perhaps best undertaken within constitutional orders rather than above them, where as here, the change changes even the core analytical lens that a supra national entity would have to use.
Dr. Sussner's excellent essay follows.
The Future of Sexual Orientation and Gender Identity in Human Rights
Where Will European Consensus Take Us?
Over the last decades, the regulation of gender and sexuality has undergone major changes in Europe. From Athens to Reykjavik, same-sex unions are legal reality. States must no longer require surgical measures before they correct gender entries. So, is heteronormativity – the normative idea of binary and heterosexual gender hierarchies – still part of the bigger (legal) picture?
To discuss this question, it is useful to look at the case law of the European Court of Human Rights (ECtHR). Regarding the shifting relationship between law, gender, and sexuality, the ECtHR has become a major actor within the last few decades. The Court recognised gender identity as an “essential part of intimate identity of all persons” and acknowledged de-facto partnerships between same-sex couples as family life. Recently, the Court rejected the claim of an intersex person (Y v. France). They had complained about mandatory binary gender recognition and applied to have “intersex” or “neutral” entered on their birth certificate. At this point, heteronormativity seems well and alive. The same appears to be true for the institution of marriage. Whereas Member States of the European Convention of Human Rights (ECHR) must offer legal recognition and protection for same-sex couples, the right to marry is still reserved for opposite-sex couples according to the ECtHR (Chapin and Charpentier v. France, para. 34). This blog post uses the cases of Y v. France and Schalk and Kopf v. Austria as examples to explore the negotiations of State’s obligations and European consensus in the area of gender and sexuality.
Y v. France: Civic Status
Globally and also in Europe, human rights of intersex people are increasingly present in the political agenda. In courtrooms, parliaments, and the streets, intersex people challenge (violent) heteronormative practices including medically unnecessary surgeries on children or compulsory binary gender registration. Regarding non-binary gender recognition, more and more States provide for a “third option”. This includes Germany and Austria. The French legal system, on the other hand, is organised in a binary way and rejects non-binary gender registration (apart from a small exception within the first three months after birth, see Art. 57 of the Civic Code). In the case of Y v. France, the applicant had been assigned male as a new born. They have, however, identified as intersex for over 60 years. Medical evidence also confirms their intersex status. In 2015, Y lodged an application to replace the entry “male” with “neutral”, alternatively “intersex”. Eventually, the Orléans Court of Appeal rejected this application based on two main aspects: First, third parties perceived Y as male. Secondly, correcting Y’s gender entry would have tremendous consequences for the French legal system and society. Thus, the general interest in a consistent and reliable system of civic records would weigh against Y’s application for legal gender recognition.
The ECtHR rejected the first line of reasoning for confusing appearance with identity (para. 88) and reaffirmed gender identity as an essential part of individual intimate identity that is protected by Art. 8 ECHR (right to respect for private life). Also, it acknowledged that the gap between identity and legal gender recognition was likely to cause Y suffering and anxiety (para. 83). Eventually though, the Court considered the arguments on the need for a consistent and reliable system of civic record more relevant. In the course of its reasoning, the ECtHR included a European perspective by using the comparative method known as European consensus. For that purpose, the Court first categorized the case as a matter of positive state obligations and not as potential interference with Y’s right to privacy. This line of reasoning is not self-evident (see para. 69, 70 though). As the Human Rights Centre at Ghent University and the Equality Law Clinic at the Université Libre des Bruxelles point out in their joint third party intervention, the Court could have also used the case to expand its case law on self-determination. Such an approach would have demonstrated similarities with the German Federal Constitutional Court’s (FCC) ruling. In 2017, the FCC held that a system of civil status that requires registration while limiting positive categories to male and female violated the general right to personality and the prohibition of discrimination on the basis of sex as guaranteed by the constitution.
The ECtHR, however, chose a different approach and took positive obligations as a starting point. Thereby, it also laid ground for a comparative approach. Especially in respect of positive obligations, the State’s margin of appreciation and the existence/lack of European consensus are regarded as relevant. In Y v. France, the Court compared the legal framework in 38 ECHR Member States. With Austria, Germany, Iceland, and the Netherlands, five Member States provide for non-binary gender recognition. Against this background, the Court held it would (still) be up to the Member States how fast and to what extent they would introduce non-binary gender recognition and a violation of Art. 8 ECHR was not found.
Schalk and Kopf v. Austria: Marriage
The ECtHR’s first ruling on same-sex marriage goes back to 2010. Horst Michael Schalk and Johan Franz Kopf had filed a complaint with the Court because Austria had denied them permission to get married. While the case was still pending, the Austrian Registered Partnership Act entered into force, which provided the couple with an opportunity to have their relationship legally recognised. Such legislative steps became increasingly common at that time. The applicants, however, had aimed for access to marriage. Thus, the Court used the opportunity to rule on whether Art. 12 ECHR (“Men and women […] shall have the right to marry”) imposes a positive obligation on the member States to provide same-sex couples access to marriage (para. 54). The applicants had argued that, in the light of present day conditions, Art. 12 ECHR should be interpreted as to include same-sex constellations. For that purpose they also relied on the case of Goodwin v. United Kingdom, in which the ECtHR held that Art. 12 ECHR included trans people in different-sex partnerships. The responding Austrian government underlined that Mr. Schalk and Mr. Kopf would still be the first same-sex couple that would be granted access to marriage under Art. 12 ECHR. There would be no consensus on granting same-sex couples the right to marry (regardless of whether this gender constellation derived from gender assignment at birth or from legal gender recognition). Similar to Y. v France, the Court approached the case from a comparative European perspective: Six out of 47 member States of the ECHR granted same-sex couples access to marriage (para. 58). So, in absence of a European consent, Member States were not obliged to provide for such access (also according to Art. 14 in conjunction with Art. 8 ECHR). However, in comparison with EU law, the Court also emphasized that the right to marry under Art. 9 of the Charter of Fundamental Rights of the European Union did not include a reference to “men and women”. Thus, this right would not “under all circumstances be limited to […] two persons of the opposite sex” (para. 61).
Just recently, in 2016, the applicants Chapin and Charpentier re-approached the Court regarding the matter of same-sex marriage. A French mayor had married the two men. The national courts had, however, nullified the marriage. The ECtHR reiterated its position and held that it saw no reason to reach a different conclusion than in Schalk and Kopf and other previous cases. At the same time, with regard to civil unions, the Court just confirmed that member States have the positive obligation to insert specific legislation to provide for recognition and protection (Fedotova and Others v. Russia).
Heteronormativity: As Matters Stand
So, how do matters stand, regarding civic status and marriage? Rightfully, Jens Theilen emphasises that, as an interpretative approach, the European consensus are Janus-faced: they can show a rein effect or a spur effect – depending on whether the Court finds a consensus in favour of the applicant or the absence of such a consensus, i.e. a consensus against the applicant. From a critical legal perspective, such a constellation certainly raises the question of underlying patterns or tendencies. How does European consensus, for example, relate to heteronormativity? This question aims not only at a reflection on our own preconceptions. It takes a post-categorial perspective and regarding the examples discussed it suggests the following insights:
Through individual complaints, the ECtHR indeed became a major factor in the recognition and protection of the human rights of LGBTIQ+ people. At the same time, the examples of civic status and marriage once more show how legal reasoning is not a linear process and LGBTIQ+ rights do not necessarily oppose heteronormativity. In Y v. France, the ECtHR reaffirms the Member State’s margin of appreciation, especially with respect to positive obligations and in absence of European consensus. The Court explicitly exercises restraint “lorsque des questions de politique générale sont en jeu, sur lesquelles de profondes divergences peuvent raisonnablement exister dans un État démocratique” (where questions of general political interest are in play, which can be subject to serious disagreements in a democratic state, para. 90). In Schalk and Kopf v. Austria, the ECtHR also reiterated that “it must not rush to substitute its own judgment in place of national authorities [regarding the institution of marriage that] has deep-rooted social and cultural connotations” (para 62.).
This exercise of restraint is not only connected through the interpretative approach of European consensus. It is also preconditioned by a perspective that centres heteronormativity in terms of heterosexual gender binary. This becomes apparent in comparison with the German FCC ruling. In this national ruling, the Court found a violation of the general right of personality and the prohibition of discrimination “if civil status law requires that one sex be registered but does not allow for a further positive category other than male or female”. This perspective does not build on an idea of binary gender registration as a controversial political issue. It rather takes a rights-based approach that centres interference and is located beyond the normality of male and female. Thus, regarding “bureaucratic and financial costs” (para. 52), the FCC’s obiter dictum seems consistent: “The legislature could generally dispense with a sex entry under civil status law” (cf. the German FFC ruling, para. 52). Similarly, the ECtHR’s approach to marriage is, as matters stand, shaped by heteronormativity, and the recent Fedotova judgement does not challenge this. To the contrary, it reaffirms this certain normality that heterosexual relationships enjoy and thereby also maintains the hierarchy that this normality entails regarding same-sex relationships. Against this background, the claimants in the cases of Schalk and Kopf v. Austria and Y v. France did not simply fail to convince the Court that certain LGBTIQ+ rights exist. The Court’s judgements also indicate a cautious approach to marriage and gender binary as institutional cornerstones of traditional heteronormativity.
Eventually, the examples of marriage and civic status also offer the opportunity to scrutinise the specifics of international perspectives within and beyond European consensus. As Judge Mits underlines in his concurring opinion: “Comme le montre l’exemple de la reconnaissance légale des couples homosexuels, […], il arrive un moment où aucun des motifs d’intérêt général invoqués ne peut prévaloir sur la reconnaissance et la protection adéquates par la loi des droits des requérants (As the case of Fedotova shows, there comes a point where public interests can no longer outweigh individual interests in legal recognition and protection, para. 9.) Indeed, with its reference to an “ongoing trend within the member States” (Fedotova and Others v. Russia, para. 178; as opposed to European consensus), the Fedotova judgement also highlights the flexibility and heterogeneity that legal negotiation of heteronormativity entails. It remains to be seen how this process will develop in respect of non-binary gender recognition.
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