In terms of LGBT equality, Europe is by far the most advanced region in the world. Thanks to the work of LGBT movements, criminal law provisions discriminating against gays and lesbians have been almost completely eradicated. There is now nowhere among the 45 European nations (and Armenia, Azerbaijan and Georgia, the three Asian countries in the Council of Europe) with a total ban on homosexual acts. And only a few places retain other discriminatory provisions, such as higher age of consent laws, in their penal code. But even these will soon disappear now that the European Court of Human Rights has ruled that such legislation is in breach of the European Convention on Human Rights.
Court plays a crucial role
The Strasbourg Court has been instrumental in these achievements. It did take its time, however, for years dismissing all complaints all complaints against the total ban and the discriminatory age of content. When it finally ruled, in 1981, that the total ban on homosexuality was in breach of the Convention, all but four Council of Europe member states had repealed the ban already. However, this judgment later turned out to be of great significance when, after the collapse of the Soviet Union and Yugoslavia, more than a dozen new states with a total ban were in the queue to join the Council of Europe. Thus, in the last 15 years, total bans were repealed in 19 European countries and dependent territories.
The laws concerning discriminatory age of consent tell a similar story. It was only in 1997 that Strasbourg ruled that such discriminatory provisions violated the Convention. At that time only a third of the Council of Europe member states still had such provisions in their criminal code. The landmark Sutherland vs UK decision by the European Court of Human Rights, however, was later used by the European LGBT movement to demand the repeal of any similar law as a precondition for accession to the European Union. Bulgaria, Cyprus, Estonia, Hungary, Latvia, Lithuania and Romania had to repeal such provisions.
The big remaining challenge on the legal front, therefore, is the recognition and equality in law with regard to partnership rights. And here, there is some indication that the Strasbourg Court has changed its previous approach to rule in favour of LGBT rights only when these have already become standard throughout Europe. When, in July 2003, the Strasbourg Court handed down its first positive decision in the field of same-sex partnership rights, it was indeed a landmark decision because at the time of the ruling, only 12 out of the then 45 Council of Europe member states had adopted some form of legal recognition of same-sex partnerships. For the first time, the Court has clearly been ahead of the mainstream legal developments with regard to gay rights.
This case – Karner vs Austria – concerned a gay man who was evicted from the apartment of his deceased partner because, due to the jurisprudence of Austria’s high court, he was not entitled to take over the lease contract from his deceased partner, unlike an opposite-sex domestic partner. The significance of the Karner judgment, however, not only lies in its geographical potential – in theory 33 countries have had to adapt to this decision – but also in its potential scope of analogous application, because the Court argued that a government must have convincing and weighty reasons to justify a different legal treatment of same-sex and opposite-sex domestic partners. There is hardly any legal area where such weighty reasons could be put forward to exclude same-sex couples from certain rights granted to opposite-sex non-married couples. So in reality, the Karner decision means nothing less than that today all 46 member states of the Council of Europe should grant the same rights to non-married same-sex partners as they grant to non-married opposite-sex partners. But unfortunately, there is no automatic mechanism to implement that.
The next exciting issue will be how the Court will decide in a complaint against discrimination based on a right that is exclusively granted to married couples only – or against the ban on same-sex marriage for that matter. In August 2004, two Austrian men filed a first complaint in Strasbourg against the ban on marriage between two persons of the same sex. However, it will take a couple of years before the Court will rule in this matter.
More challenges ahead
So, even in Europe, it would be far too early to lean back and be complacent. There is still a lot to do in order to gain complete legal equality. And there is more to equality than the law. Creating and sustaining a gay- and lesbian friendly climate in society is also a challenge that will persist for some time, and young people of every generation will face hostility and will have to cope with homophobic attitudes, in their families, at school, at their job, indeed in all walks of life. These problems will probably never go away completely. And achievements are always threatened by back-lashes as we had to experience in many countries.
The recent developments in some parts of Central and Eastern Europe where LGBT Pride parades have been banned by the authorities clearly demonstrate that no rights can be taken for granted. The European movement was taken by total surprise to discover that there’s still a need to defend such basic rights as the freedom of assembly. While politicians and certain elements of society in these countries may not yet have arrived in the 21st century, their legal systems, luckily, have been adapted to European standards, and so Pride organisers everywhere have successfully challenged the various bans on Pride marches in court.
But these incidents clearly show that there are movements in some parts of Europe that still need support and solidarity from abroad. For many people, solidarity has become an old-fashioned term but the reality is that it most certainly is not. So, let’s continue to give support and solidarity to those who need it, in order to create a Europe of equality for all, including LGBT people.