Still no European consensus on gay rights.

Gay rights have been very controversial in many countries for a long time. Homosexuality is still not generally accepted socially. The focus and protection of gay rights is a rather recent movement. The protection of gay rights started to gain momentum during the 20^th century, thanks to the Civil Rights Movement. Before that, most legal systems in Europe were silent on the subject of homosexuality. Very often, religiously inspired legislations and policies caused homosexuality to be criminalized, incurring harsh penalties. Being gay was seen as immoral and unnatural. Events in the 20^th century were a turning point. In World War II gay men and women were targeted and prosecuted. These unjust events brought visibility to the gay community.

After the war, international organisations were formed and they were striving for decriminalization of homosexuals. It was the beginning of a major legal reform in Western Europe. However, the movement for the protection of gay rights did not begin in Europe. During the Stonewall riots in June 1969 gay people violently demonstrated against a police riot in a gay bar. Being one of the most important events, it led masses of people in the US to stand up for gay rights and fight for the equality between gay men and women and straight people.

The wave of gay rights eventually reached Europe. However, around the 1970s there was still no uniform consensus on gay rights throughout Europe and especially in Eastern Europe. Not much was done by the European Union on this subject.

The first institution to take concrete action in this respect was the European Court of Human Rights (ECHR). In 1980’s, the Court ruled that the criminalization of homosexuality was a violation of the right to respect for private and family life. The object of this case was the criminalization of the male homosexuality in Northern Ireland. The prosecuted party went to the European Court and claimed to live in extreme mental fair and stress due to the mere existence of the law that criminalizes gay relations. The Court stated:

‘The court is not concerned with making any value judgment as to the morality of homosexual relations between adult males. The Court’s task is to determine (…) on the basis of the principles whether the reasons of a state to interfere in someone’s private and family life are relevant and proportionate’.[1]

As the decisions of the ECHR are binding for all the states concerned, Northern Ireland had to bring its legislation into line with the rest of the UK. The movements to grant equal rights to gay people continued and went further than simple decriminalization. More cases came before courts and in 2000 the ECHR had to rule on the matter of same-sex marriage. In most countries, a condition to get married was the difference of gender. The Court was more careful to rule on this subject. It didn’t oblige a state to grant the right of marriage to same-sex couples. It stated that national authorities were the best placed to assess and respond to the needs of society, since marriage is deep-rooted to its social and cultural traditions[2]. Before taking a decision, the Court looks for a minimum consensus about the particular issue based on legal, political and social aspects across the member states. The decisions of the Court were to be executed by the countries and incorporated in their legal system. If the Court would force certain fundamental changes, such as same-sex marriages, on 47 member states it could very well have caused a political backlash, with the risk of a country threatening to leave the system. It therefore held off from making any definitive judgement until the prevailing attitude towards same-sex marriages in Europe had shifted.

Around 2010, the European Union started discussing and legislating on gay rights. The Treaty on the Functioning of the European Union took a provision to fight discrimination on the grounds of sexual orientation. Then, a directive was adopted to compel states to adopt anti-discrimination legislation in employment. Step by step, Europe is going towards a community where all people are equal and enjoy equal rights. However, there is still no universal consensus in Europe on all gay rights. Marriage for instance is an evolutionary concept. People do not longer get married for purely patrimonial reasons (traditional concept). Today, it has generally evolved towards an act of love. But even today gay people can only get married in 2/3 of the European countries. An attempt was made to take in the European Union to allow same-sex marriage in its territory, but there was no willing majority in the council to take any decision.

In conclusion, the sexual orientation movement is far from completed. On a European level, it is progressing but slowly. There is a need for social evolution and acceptance of gay rights, before political and legal steps can be taken. Luckily, Europe is tending more and more towards a gay friendly community.

Sources:

[1] Dudgeon v. United Kingdom, 23 september 1981, A N°45, para 54.
[2] Schalk and Kopf v. Austria, 24 june 2010, A N° 30141/04.