Analyzing the Evolution of LGBTQ Rights Litigation in the European Court of Human Rights

Laurence R. Helfer & Clare Ryan, Contesting Sexual Orientation Rights Before the ECtHR,  International Sexual and Reproductive Rights Lawfare (Siri Gloppen & Malcolm Langford eds., 2023)

This chapter, a contribution to an edited volume on "International Sexual and Reproductive Rights Lawfare," analyzes the evolution of lesbian and gay rights litigation before the European Court of Human Rights (ECtHR). Between 2010 and 2020, the ECtHR issued fifty-seven merits judgments involving a broad array of sexual orientation issues—a sharp expansion from the number of such decisions in earlier periods. The growing number of cases reflects the fact that sexual orientation rights have become increasingly contested across Europe. We explain the reasons for this trend and predict that recent ECtHR judgments concerning same-sex partnerships and asylum are poised to further exacerbate these contestations.

In addition, we offer insights into the research questions identified in the Introduction to the edited volume. We emphasize the strategic decisions of actors who turn to the ECtHR as a sympathetic venue for expanding lesbian and gay rights across Europe and, separately, to provide a bulwark against repression by some states. We identify the political and social factors that push these cases to the Court and the doctrines it applies when adjudicating these disputes. We then discuss the nation-level protections that ECtHR litigation has historically engendered and how recent cases have increased the risk of noncompliance with ECtHR judgments concerning sexual orientation rights. Finally, we investigate whether the Court can maintain its legitimacy and avoid politicizing sexual orientation rights cases in light of the growing contestations over those rights across Europe.