LGBTI equality and human rights in Europe and Central Asia

ILGA-Europe’s third party interventions before the European Court of Human Rights: Celebrating 20 years of our first submission

Strategic litigation
European Court of Human Rights
Council of Europe

20 years ago today, on 15 June 2000, ILGA-Europe submitted its first third party intervention before the European Court of Human Rights in the case of Frette v France. To mark this anniversary, we reflect on how this intervention effectively marked the beginning of ILGA-Europe’s litigation work, which has developed exponentially in the recent years. Nowadays, third party intervention submissions are important and a big part of our litigation work addressing various aspects of LGBTI rights. 

The submission in Frette was initiated by Professor Robert Wintemute from King’s College London, and was inspired by his previous experience of amicus curiae submissions before US courts. The case concerned refusal of authorisation to adopt, based on applicant’s sexual orientation. Disappointingly, the Court delivered a negative judgment, referring to, among others, lack of consensus among the Council of Europe member states on adoption by gay and lesbian prospective parents, and limited number of scientific studies approving gay and lesbian parenting.  Yet importantly, this case was a steppingstone for other cases before the Court, since the judgment was decided by four votes to three, and three the judges issued a supportive dissenting opinion.  Many aspects of the latter were reflected in another adoption case, E.B. v France, decided positively only 6 years later in 2008.  

It would be fair to suggest that this first third party intervention was an enlightening experience both for the Court and ILGA-Europe. As a first case on adoption by a gay person, it signalled the importance of family and the need to protect family rights of gay and lesbian parents. ILGA-Europe later built on the experience of providing the Court with the necessary information in order to enable positive and stronger judgments. 

Thus, as the E.B. case came before the Court, ILGA-Europe once again submitted a third party intervention, also initiated by Professor Wintemute, this time jointly with other human rights organisations: Fédération Internationale  des  ligues  des  Droits  de  l’Homme (FIDH),  British Agencies for  Adoption  and  Fostering (BAAF),  and Association  des  Parents  et  futurs parents Gays et Lesbiens (APGL). This submission provided the Court with information on “gradual trend towards full equality for same-sex couples with regard to second-parent adoption and joint adoption" among the Council of Europe member states, naming the countries which started permitting various forms of adoption to gay and lesbian couples.  

In addition, the submission highlighted extensive scientific research in the field of adoption and parenting, evidencing that children raised by  gay or lesbian parents do not suffer any harm in their psychological development, or exhibit any emotional, cognitive, social, and sexual functioning different to those in heterosexual families, and that parenting effectiveness  is not related  to  parental  sexual  orientation.

These cases were just the beginning.

In subsequent years, more and more LGBTI organisations across Europe started to actively engage in strategic litigation work on LGBTI rights. Our work in supporting member organisations, building strategic partnership for litigation work, capacity building and peer learning, bringing in free resources to our members, sensitising the legal community, supporting  implementation of judgments, as well as regarding third party interventions grew continuously. Many people contributed: LGBTI activists, legal advisors, and partners on national level; we are lucky to partner with other human rights organisations in strengthening strategic litigation on European level; and of course Nigel Warner, who until 2019 supported ILGA-Europe in developing this important area of our work. 

Now 20 years on, we are working with member organisations and partners on strategic litigation cases  addressing diverse areas of LGBTI rights, including hate crimes and hate speech, arbitrary arrests, detention and torture of LGBTI people, broader aspects of family rights (including but not limited to recognition of same-sex couples, custody rights, trans parenting, access to ART), legal gender recognition, asylum rights, freedom of association and assembly, anti-propaganda laws, access to goods and services and others. 

Following E.B. the Court has delivered a number of positive judgments establishing strong protection framework for LGBTI rights, in many of which ILGA-Europe had intervened jointly with members and partners.  

To name a few:

  • Most recently in Beizaras and Leviskas v Lithuania, the Court established the obligation to investigate online hateful comments, in this case the speech expressed against a gay couple, to violate their rights to private and family life as well as being discriminatory on the ground of sexual orientation.  
  • Concerning balancing the right to freedom of religion with the public interest in providing non-discriminatory services the Court held in Ladele and McFarlane v. UK that members of the public, regardless of their sexual orientation, should be treated with dignity and have equal access to services.
  • In A.P., Garcon and Nicot v France the Court found that requiring sterilisation surgery as part of legal gender recognition is in violation of the European Convention. 

We would like to thank all our member organisations and engaged activists, partners, independent lawyers, researchers and academics for being partners in this important work.

Read more:

  • Read our blog on our work in the hate speech case Beizaras and Levickas v. Lithuania.
  • Learn more about our litigation work, here
Photo: © Council of Europe / Sandro Weltin