Do Same-Sex Couples Have the Human Right to Marriage

i
all persons are equal before the law and are entitled without a
ny discrimination to the equal protection of the law in this resp
ect, the law shall prohibit discrimination and guarantee to all
persons equal and effectiveprotection against discrimination o
n any ground such as, race, colour, sex, language, religion,
political or other opinion, natio nal or social origin, property,
birth or other status. all persons are equal bef ore the law and
are entitled without a ny discrimination to the equal protection
of the law. in this respect, the law shall prohibit discrimination
and guarantee to all persons equal and effective protection aga
inst discrimination all persons are equal before the law and ar
e entitled without any discrimination to the equal protection of
the la w. in this respect, the law shall prohibit discrimination a
nd guarantee to all persons equal and effective protection agai
nst discrimination on any ground such as, race, colour, sex,
language, religion, political or other opinion, national or soci
al origin, property, birth or other status all persons are equal
before the law and are entitled without any discrimination to
the equal protect ion of the law in this respect, the law shall pr
ohibit discrimination and gua rantee to all persons equal and
Do Same-sex couples have the
human right to marriage?
by Cecilia Karlsson
Supervisor
Mona Samadi
Örebro University 2010
School of Law, Psychology and Social Work
Master in Legal Science, 15 hp
2010-08-14

ii
List of abbreviations
CM Committee of Ministers
CoE Council of Europe
ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms
ECtHR European Court of Human Rights
ECOSOC The Economic and Social Council
ICCPR International Covenant on Civil and Political Rights
ILGA International Lesbian, Gay, Bisexual, Trans and Intersex Association
UN United Nations

iii
Abstract
International human rights is said to concern everyone, but it has been disputable whether
homosexuals could enjoy these rights. This thesis purpose is to bring light on the case for gay
rights, including their development, and to answer the question whether same-sex couples have
the human right to marriage according to two of the international human rights treaties.
Homosexuality has been treated differently through history, it has been both accepted, met
resistance and been seen as a disease. The homosexual activity has also been a criminal act and
as a consequence, homosexuals were for a long time excluded from some of the human rights.
But the view on homosexuality has changed and the interpretation of the treaties has too, and
lately homosexuals have been given some of those human rights that they did not enjoy before.
However, there are still some rights they cannot enjoy, one of these is the right to marriage.
Marriage is commonly seen as a traditional and religious union between a man and a woman,
and this is clearly reflected in the wording of the treaties right. But marriage is not just a
religious act, it is a legal union connected with certain rights, benefits and obligations which only
can be enjoyed by someone in a marriage. Before late 80’s, same-sex couples had no chance to
bond in a legal union equal or alike the heterosexual marriage. Denmark was the first country to
recognize same-sex couples in 1989 by giving them a substitute legal union, but not equal to
marriage, called registered partnerships. This substitute spread worldwide and since, more than
50 jurisdictions have some sort of substitute to marriage for same-sex couples. Nine states
allows same-sex couples at present writing to get married under the same law as different-sex
couples, and more states are expected to do the same. But why is a legal recognition of same-sex
marriage important? One reason is the connection between the right to marriage and the right to
respect for private life. The possibility to fulfill oneself is seen as a part of right to respect for
private life, which includes live and bond with the one the person love and if same-sex couples
do not have any possibility to this, the right should violated. Other reasons is the symbolic status
the marriage has and the lack of relevant arguments to not to allow same-sex marriage. The right
to marriage in the human rights treaties could be interpreted in different ways, both in favor and
against same-sex marriage. However, the most common interpretation of the right is that it
concerns the traditional view on marriage, but the problematic thing with this interpretations is
that it is discriminatory, based on sexual orientation. Because the treaties say that all human
beings are entitled to the human rights, with no excuses. But there are however excuses, the
principle of the margin of appreciation, which the ECtHR uses, is one and accepts some
differences between states depending on the states culture. Another one is a question whether
same-sex couples are considered a family under each states legislation and culture. The answer
on the question on whether same-sex couples have the right to marriage under international law
is yes, and no. In the ECHR, it very much depends on each states view on family and whether
same-sex couples are seen as a family under each states law and therefore in states where same-
sex couples is accepted as a family, same-sex couples have the right and in states where they are
not considered to be in a family, they do not have the right. In ICCPR, the committee has in a
statement concluded that same-sex couples cannot enjoy the right, however the statement
should not be seen as general interpretation of the right. But it has in many cases been clear that
the interpretation of ICCPR has been influenced by ECtHRs judgment. When the verdict of the
two pending cases, concerning the right to marriage for same-sex couples, comes the ECtHRs
interpretation is going to have an influence on the interpretation of the ICCPR.

iv
Table of Contents
1. Introduction................................................................................................... 1
1.1. Purpose..............................................................................................................................2
1.2. Method and Materials .......................................................................................................2
1.3. Delimitations......................................................................................................................3
1.4. Disposition .........................................................................................................................3
1.5. Definitions..........................................................................................................................3
2. The Development of Gay Rights.............................................................. 4
2.1. International Human Rights...............................................................................................5
2.1.1. International Covenant on Civil and Political Rights ................................................6
2.1.2. European Convention on Human Rights..................................................................6
2.2. The Organized Fight For Gay Rights ...................................................................................7
2.2.1. ILGA in the UN .........................................................................................................8
2.3. Decriminalization of Homosexual Activity .........................................................................9
2.3.1. Dudgeon v. The United Kingdom.............................................................................9
2.3.2. Toonen v. Australia................................................................................................12
2.4. Right to Respect For Private and Family Life....................................................................13
2.5.Discrimination Based on Sexual Orientation.....................................................................14
2.5.1. In the ICCPR ...........................................................................................................14
2.5.2. In the ECHR............................................................................................................15
3. Same-Sex Couples Right to Marriage ..................................................17
3.1. Marriage – A Legal Contract.............................................................................................17
3.2. The Right to Marriage in Human Rights Conventions ......................................................18
3.2.1. Article 23 in the ICCPR ...........................................................................................18
3.2.2. Article 12 in the ECHR............................................................................................19
3.3.The Legal Status For Same-Sex Couples............................................................................21
3.3.1. Unmarried Couples Rights .....................................................................................21
3.4. Case Law ..........................................................................................................................22
3.4.1. Decided..................................................................................................................22

v
3.4.2. Ongoing .................................................................................................................22
3.5. The Current Situation.......................................................................................................23
3.5.1. State Recognition of Same-Sex Marriage...............................................................23
3.5.2. Statements by Courts Worldwide..........................................................................24
3.5.3. Why not same-sex marriage? ................................................................................25
4. Analysis..........................................................................................................26
4.1. The Development of Gay Rights.......................................................................................26
4.1.1. The Criminalization of Homosexual Activity ..........................................................26
4.1.2. The Morals of Religion...........................................................................................27
4.2. Same-Sex Couples Right to Marriage under Human Rights Law ......................................27
4.2.1. Why is recognition of marriage for same-sex couples important? ........................27
4.2.2. Discrimination........................................................................................................28
4.2.3. What reasons are there for not allowing same-sex marriage?..............................28
4.2.4. Could there be a recognition? ...............................................................................29
5. Conclusion ....................................................................................................30
6. Suggestions on Further Study................................................................31
Sources...........................................................................................................32

1
1. Introduction
“…[an] exclusion from the marriage institution fails to recognize the inherent dignity of
homosexuals, to recognize their equal and inalienable rights of homosexuals as members of the
human family, to provide the foundation of freedom and justice for homosexuals, to protect the
human rights of homosexuals, to utilize the rule of law to protect those rights, or to demonstrate
that the peoples of the United Nations have reaffirmed their faith in the dignity and worth of
lesbian and gay people as human begins.”
1
Since 1945, human rights have been a discussed topic and several international conventions,
declarations and covenants have been created. Although these treaty-rights have concern all
human beings, special groups within the humankind have been given special attention, e.g.
women,2 refugees,3 children4 and indigenous peoples.5 A group of people that have been fighting
for a recognition of their rights for decades are the homosexuals. Even though homosexuality is
visible and accepted in a lot of states, their rights in some countries are non-existent or in others
very limited. It was not until 1993, when the United Nations (UN) held the World Conference on
Human Rights in Vienna, as the first time an organization representing lesbian women and gay
men were accredited on a UN meeting and just the year before the first open homosexual person
spoke in a UN human rights forum.6
Lesbians and gays are insulted, abused and discriminated because of their sexual orientation.
Because of their sexuality, homosexual couples are excluded from a number of legal advantages,
like social benefits, that can be enjoyed by married or unmarried heterosexual couples.7 The
recognition of same-sex marriage is a very diverse and widely-debated issue,8 “both within and
outside the gay and lesbian movement”.9 Graupner finds the present written human rights law a
“scanty” when it comes to “sexual rights”.10 He, however, points out that the case-law provides a
significantly good and full protection of autonomy in sexual life and against discrimination based
on sexual orientation. But are there really justifications for interference of sexual rights of a
minority? According to Graupner the answer is no, not even a majority’s negative attitude should
justify it and should not the society accept some inconvenience to make sure that individual’s
dignity and worth are secured.11
1
Communication No.902/1999 New Zealand, 30/07/2002 (Joslin v. New Zealand), paragraph 5.3.
2
The Convention on the Elimination of all Forms of Discrimination against Women, 1979.
3
The Convention Relating to the Status of Refugees, 1951.
4
The Convention on the Rights of the Child, 1989.
5
The Declaration on the Rights of Indigenous Peoples, 2007.
6
Sanders, Getting Lesbian and Gay Issues on the International Human Rights Agenda, Human Rights Quarterly,
Vol. 18, Issue 1 (1996), p.67.
7
Waaldijk & Clapham, Homosexuality: A European Community Issue, Essays on Lesbian and Gay Rights in
European law and Policy International Studies in Human Rights, Vol. 26 1993, Dordrecht: Nijhoff, p.xvi.
8
Hrutkay, “Give me your tired, your poor, your huddled masses,” but not your homosexual partners:
International Solutions to America’s Same-Sex Immigration Dilemma, Cardozo Journal of International and
Comparative Law, Winter 2010.
9
Waaldijk & Clapham, Homosexuality: A European Community Issue, Van Der Veen & Dercksen, p.143.
10
Graupner & Tahmindjis, Sexuality and Human Rights: A Global Overview, 2005 Binghamton, NY : Harrington
Park Press, Graupner, p.109.
11
Ibid.

2
Claiming gay rights is a very controversial topic and it is not unusual that very religious and/or
conservative states are very reluctant to the recognition of gay rights.12 But the time has change
and the fact is that even very traditional religious states have taken steps in the direction of
tolerating homosexuals.13 But as everything, that concerns change of values and comprehension,
it takes time. But is time a justification to not let human beings enjoy their rights and freedoms?
1.1. Purpose
The purpose with this thesis is in general to bring light on the case of gay rights and particular
on same-sex couples. I intend to answer the question whether same-sex couples according to
international human rights have the right to marriage. I will also include a brief summary on the
development of homosexual right in history and until present day, this to find out and try to
understand the difficulty around the claims of gay rights.
1.2. Method and Materials
I hope to achieve my purpose by examine and analyze gay rights through a historic flashback on
how gay rights in general have developed and how the view has been on homosexuality in
history. I will closer examine the international treaties and case law, an important reason for the
international approach is the international laws position and supremacy over national law, and
therefore has a big influence on states worldwide.
The materials that I am going to be use are the following; international human rights legislation
(like conventions), literature, comments, articles and case law. The conventions I plan to use are
the International Covenant on Civil and Political Rights and the European Convention on Human
Rights. The reason I have chosen the European Convention, of all the other regional conventions
in the world, is because; it has the most effective mechanism in its enforcement, the fact that it
have been dealing with cases concerning gay rights and that it has a big influence on the
interpretation of other international human rights treaties. I will examine some cases closer,
partly because of its historical importance and partly because I want to show how the thoughts
and opinions have changed and effected states. I have also chosen some cases that have been
and are dealing with the question the right to marriage for same-sex couples. Gay rights are not
the most common area in international law and therefore there are a quite limited number of
literature and articles it offers. A consequence of this is that the authors are quite few and are
mostly pro-gay rights. This is important to point out since those who do not recognizes gay
rights naturally does not writes about it, and if they do, they are very strong opponents. I will
also use some articles from newspapers, this because it is hard to find literature or such on
current events, like newly adopted legislation.
12
Sanders, Getting Lesbian and Gay Issues on the International Human Rights Agenda, p.69 f.
13
See Chapter 2.4.1. Dudgeon v. The United Kingdom.

3
1.3. Delimitations
This thesis has its focus on the international perspective and therefore is not going to handle
specific states national legislation more than necessary. It’s necessary for example in the case
law referring, to understand the specific case and when giving examples of developments of
rights in states around the world. The thesis focus is on the international human rights
legislation because it would be impossible to examine all the national legislation in the world
that concerns gay rights.
The focus is on homosexuals, therefore the thesis are not going to handle rights for transgender
people, even though these people sometimes also belong to the homosexual group of people. The
thesis are just going to handle; the right to private and family life, the right to marriage and the
general right of non-discrimination.
1.4. Disposition
The second chapter handles the development of gay rights, first with an introduction on the view
of homosexuality in history then later with more focus on the development post-war, included
special sections with e.g. international human rights, the decriminalization of homosexual
activity, and sexual orientation as a prohibited ground for discrimination.
The third chapter handles the right to marriage. It begins with marriage as a legal institution,
followed by a closer look on relevant articles in the conventions and later ends with a section
about the current situation for same-sex marriage.
The fourth chapter, the analysis, will deal with the difficulty around the claims of gay rights and
analyses possible reasons why the development of gay rights has taken so long. The second part
handles the main issue, whether same-sex couples have the right to marriage according to
international human rights. This part deals with why it is important for same-sex couples to be
given this recognition, if there are any possible justification to not allow same-sex couples to get
married, whether the exclusion from the right is discriminatory and if there are a possibility for
an international recognition of same-sex marriage.
1.5. Definitions
In this thesis, when referring to “gay rights“ it is used in terms of both lesbian (female) and gay
(male) rights. The term of “same-sex couples” is referred to couples of two persons of the same
sex (a homosexual couple) and “different-sex couples” when referring to couples of two persons
of the opposite sex (a heterosexual couple).
Since the meaning of marriage and what comes with it differs from state to state, the word of
“same-sex marriage” is referred to a legal union of two same-sex partners which is equal and has
the same rights and obligations as a union between two different-sex partners in a state.

4
2.The Development of Gay Rights
Cultures in history have treated homosexuality in many different ways.14 “[A] number of ancient
religions [have] found a spiritual and social value in sexual diversity while others found only
degradation and sin”.15 In both ancient Greece16 and Rome, homosexual activity between two
males, were common and accepted.17 The sexual relationships at this time were valued from
terms of gender, where the men had the active and penetrating role and the more passive role
was given to e.g. younger males, women, males of lower class or prostitutes. Despite from the
liberal view on homosexuality, same-sex relationship between two women were not accepted.
Since the woman was seen as having the passive role by nature, it was therefore seen unnatural
for a woman to take an active role in a sexual act with another woman.18 In different Amerindian
societies homosexuality has been tolerated,19 and sexual diversity has been accepted in many
Asian societies as well.20 In China, among the Amerindians and in parts of Africa, institutions
more or less identical to today’s marriage have accepted same-sex unions in different time
periods.21
The attitudes towards homosexuality in the Islamic world have been split. The Koran does not
punish same-sex relations, but does condemn it and for older single women in some Arab
societies, lesbian relationships have been accepted.22 The Christian moral teachings strongly
criticize the ancient Greek moral views on homosexuality and the most upsetting with the
homosexual behavior were that a man took the passive female role in the sexual act. The
Christians feared that if sexuality and gender was to be seen in this “asexual” approach, as when
a man took a female role, it could be interpret as the woman should be treated as an equal to the
man, in other words, as a person.23 For a very long time homosexual activity existed outside the
law24 and were punished in inhumane ways, such as burned alive or through decapitation.25 But
in the eighteenth and nineteenth century the homosexual role in Europe changed and the view
went from homosexuals as men who have sex with boys to “men in subcultures who ‘are
effeminate members of a third or intermediate gender.’”26 Because the homosexual activity
became a more organized subculture and took a more public form, it was more persecuted than
before. At this time the norm for the relation between men and women was that they were
separated by biological nature and if a man didn’t follow this norm, he was considered to be a
14
Sanders, Getting Lesbian and Gay Issues on the International Human Rights Agenda, p.74.
15
Caramagno, Irreconcilable differences? : Intellectual Stalemate in the Gay Rights Debate. 2002 Westport, CT.:
Praeger, p.27.
16
Richards, Women, Gays and the Constitution: The Grounds for Feminism and Gay Rights in Culture and Law.
1998, Chicago: University of Chicago Press, p.290 f.
17
18
Caramagno, Irreconcilable Diffrences? p.24.
19
Richards, Women, Gays and the Constitution, p.292.
20
21
Sullivan, Same-Sex Marriage : Pro and Con. 2004, New York: Vintage Books, p.3.
22
23
Richards, Women, Gays and the Constitution, p.290 f.
24
Richards, Women, Gays and the Constitution, p.292.
25
26
Ibid.

5
woman. In the late nineteenth century the women became a part of this norm too and were
claimed to be a man in the same sort of reasoning.27
A German law from 1871 criminalizes a male that allowed himself to participate in “criminally
indecent activities with another male or who allows himself to participate in such activities will
be punished with jail”.28 As strong opponents to homosexuality, Hitler’s party changed the
paragraph in 1935. The change meant that authorities were permitted to “arrest any male on the
most ludicrous and transparent charges”29 and that something as quite harmless as a kiss or a
touch could be a case under the law.30 Himmler claimed that homosexuals were “sociosexual
propagation misfits” and meant that homosexuality was a contagious disease.31 In the Nazi
concentration camps, homosexuals were probably the smallest group and because of lack of
statistics there are no certain numbers on how many they were, but by estimation between
5,000 and 15,000 homosexuals were killed.32 Many of the anti-homosexual laws from the Nazi-
Germany time remained after the end of Second World War and did not disappear until 1969.33
But it was not only Himmler that saw homosexuality as a contagious disease. In other states and
regions world over, the homosexual act have been and still is seen as a form of psychiatric
deformation which infested some people and that the behavior could be healed. “This view was
based on studies of homosexual patients in the psychiatric care.”34 and it was later even claimed
in studies that proof showed that homosexuality was both a physical and psychiatric condition.
Because of this, homosexuals became more stigmatized and since some people feared that the
disease homosexuality was contagious, a consequence was that many societies criminalized
homosexuality. In the late 1950s, studies showed that homosexuals were not sic and were
capable to live a normal life, just like the heterosexuals. Gradually the view of homosexuality as a
disease faded in many societies. Homosexuality was even classified as a disease by the World
Health Organisation in the International Classification of Diseases, but was removed in later
updates.35
2.1. International Human Rights
The first idea of human rights came with the enlightenment in the late eighteenth century and
the French Revolution. As an effect of the Revolution, the criminal bans on sexual activity were
abolished and in 1789, the Declaration of the Rights of Man and Citizen was made.36 Post-war, in
1948, the Universal Declaration of Human Rights (UDHR) was adopted by the UN:s General
Assembly and the first international statement on human rights had been created.37 Since, a
number of international treaties concerning human rights have been made. But even though
27
28
Plant, The Pink Triangle: The Nazi War Against Homosexuals 1988, New York, N.Y.:Holt, p.30.
29
Plant, The Pink Triangle, p.110.
30
Ibid.
31
32
33
34
Waaldijk & Clapham, Homosexuality: A European Community Issue, Van Der Veen and Dercksen, p.138.
35
Ibid.
36
Declaration of the Rights of Man and the Citizen, August 1789; Graupner & Tahmindjis, Sexuality and Human
Rights: A Global Overview, Graupner, p.108.
37
Universal Declaration of Human Rights, Adopted on December 10, 1948 by the General Assembly of the
United Nations.

6
these conventions and covenants provide that their rights and freedoms are for “all the
members of the human family”38 and “everyone”39 and that they, just as the UDHR, consider
“recognition of the inherent dignity and of the equal and inalienable rights of all members of the
human family is the foundation of freedom, justice and peace in the world”40 it has been unclear
and disputable whether certain rights could be invoked by homosexuals and whether sexual
orientations could be a ground for unjustified discrimination.41
2.1.1. International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights42 (ICCPR or “the Covenant”) was created
1966, together with the International Covenant on Economic, Social and Cultural Rights.43 The
ICCPR contains a number of articles that concerns and could de facto be invoked by
homosexuals, e.g.: the right to life,44 the right not to be subjected to torture or cruel, inhuman or
degrading treatment,45 the rights to liberty and security of the person,46 the right to privacy,47
the right to freedom of thought, conscience and religion,48 the right to hold opinions,49 the right
to peaceful assembly,50 freedom of association,51 the right to marry,52 equality before the law and
equal protection of the law.53
2.1.2. European Convention on Human Rights
The European Convention for the Protection of Human Rights and Fundamental Freedoms is more
known as the European Convention on Human Rights, (“ECHR” or “the Convention”) and was
created in 1950.54 In its early stages, the issue of discrimination based on sexual orientation was
raised. The applicants that raised the issue were victims of the holocaust, because of
participating in homosexual activity. They argued that any prohibitions against gay homosexual
activity, not lesbian, where a breach of article 8, the right to respect for private and family life,
and article 14, prohibition on non-discrimination. The European Commission of Human Rights
38
ICCPR, preamble.
39
ECHR, preface.
40
Universal Declaration of Human Rights, preamble.
41
Waaldijk & Clapham, Homosexuality: A European Community Issue, van Dijk, p.183 f.
42
International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and
accession by United Nations General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23
March 1976, in accordance with Article 49.
43
International Covenant on Economic, Social and Cultural Rights, Adopted and opened for signature,
ratification and accession by United Nations General Assembly resolution 2200A (XXI)of 16 December 1966
entry into force 3 January 1976, in accordance with article 27; Graupner & Tahmindjis, Sexuality and Human
Rights: A Global Overview, Graupner, p.109.
44
ICCPR, Article 6.
45
ICCPR, Article 7.
46
ICCPR, Article 9.
47
ICCPR, Article 17.
48
ICCPR, Article 18.
49
ICCPR, Article 19.
50
ICCPR, Article 21.
51
ICCPR, Article 22.
52
ICCPR, Article 23.
53
ICCPR, Article 26.
54
Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol 11,
Rome 1950.

7
(“the Commission”) found these applications inadmissible under article 27, paragraph 2 and
almost all applications were concluded:55
“the Convention allows a High Contracting Party to punish homosexuality since the right to
respect for private life may…be subject to interference…for the protection of health or morals”.
56
The Commission, which decided which cases should be brought up for the European Court of
Human Rights (ECtHR or “the Court”) at that time, is nowadays abolished.57 In spite of the fact
that the Commission’s quite negative decisions for gay right still has guidance for the
interpretation of the Convention and have had a harmful effect for gay rights, the ECtHR has
emphasized that “the Convention is a living instrument which … must be interpreted in the light
of the present-day conditions”58. The case-law concerning gay rights has changed after the Court
took over the Commission’s work in 1998.59 Graupner states that the protections for sexual
rights are limited and are rarely are secured by domestic courts and almost exclusively by the
ECtHR. Thus, he points out, the courts case-law are undermined by its inconsistency.60
2.2. The Organized Fight for Gay Rights
After the Second World War, lesbians and gays over the world started to organize61 and
arguments for gay rights started to emerge.62 In 1946, the Netherlands Association for the
Integration of Homosexuality was founded and in 1948, the national Danish organization started.
June 1969 is said to be the starting point for the modern lesbian and gay liberation movement
and it happen in New York City, “when a group of gay men fought back during a police raid”,63
and the year after, the first gay “pride” parade was held. The pride parade and movement spread
worldwide and even though gay and lesbian organizations were more common in the west,
organizations started to developed in other parts of the world too.64 In the United States, the
antiracist and the rights-based feminist movements achieved to “broader the protections of
constitutional guarantees of conscience and speech”65 to include dissents in matters of race,
gender and sexuality. This gave rise to important arguments for gay rights, the self-identifying
claim to a gay and lesbian identity on terms of justice. Richards emphasizes that
“*t+he crucial importance of such identity-based claims in the contemporary forms of political
aggression against gay rights (specifically targeted at such identity-based assertions of basic
55
Wintemute, Sexual Orientation and Human Rights: The United States Constitution, the European Convention
and the Canadian Charter 1995, Oxford: Clarendon Press, p.92.
56
X. v. Germany (No. 530/59) (1960) 3 Y.B. 184 at 194, quotation through Wintemute, Sexual Orientation and
Human Rights, p.92.
57
Wintemute & Andenæs, The legal recognition of same-sex partnerships: A Study of National, European and
International Law 2001, Oxford: Hart, Wintemute, p.714.
58
Tyrer v. U.K. (25 April 1978) (Ct. J.) para.31. quotation through Wintemute & Andenæs, The legal recognition
of same-sex partnerships, Wintemute, p.717.
59
Wintemute & Andenæs, The legal recognition of same-sex partnerships, Wintemute, p.714.
60
Graupner & Tahmindjis, Sexuality and Human Rights: A Global Overview, Graupner, p.109.
61
62
Richards, Identity and the Case for Gay Rights: Race, Gender, Religion as Analogies, 1999, Chicago, Ill. :
University of Chicago Press, p.84.
63
64
Ibid.
65
Richards, Identity and the Case for Gay Rights, p.85 f.

8
human rights) must be understood corresponding as the expression through public law of
constitutionally forbidden religious intolerance.”
66
The international gay rights movement achievement became possible mostly though the practice
of the states changed.67 In 1978, the International Lesbian and Gay Association (ILGA) was
founded in England,68 and was the first international lesbian and gay organization.69 Today, ILGA
has more than 400 group members in 60 states worldwide. ILGA have had a big success in the
fight against discrimination in Europe and it has resulted in a number of resolutions and “other
positive actions.”70 Although ILGA:s success on the international level, many national lesbian and
gay organizations are exposed to and confronted with negative attitudes and actions from anti-
homosexuals. They can meet resistance as; not be given an official recognition as an
organization, be refused to financial and funding services, and be exposed to violent attacks of
bombing, robbery and raids by the police.71
2.2.1. ILGA in the UN
1991 was the first time ILGA was suggested to have consultative status for UN: s Economic and
Social Council (ECOSOC). The suggestion was handled by Committee on Non-Governmental
Organizations, an organ within the ECOSOC and was deferred since it met resistance from some
states. In 1993 the suggestion was handled again, but once again met resistance. Though, this
time a voting was held and had a positive outcome and the decision was forwarded to ECOSOC.
In July 1993, the ECOSOC voted and 22 states voted in favor for the consultative status, four
voted against, four states abstained and one was absent.72 This meant that ILGA was given the
status. But just the year after, ILGA: s consultative status was said to be temporary suspended,
since a member organization of ILGA supported pedophilia. ILGA: s consultative status has not
been reinstate since.73
But what was the reason gay rights had been so unrepresented in the international human rights
arena until then? Sanders pointed out three possible factors; Firstly, homosexuals are a
stigmatized minority and the homosexual activity has been and still is criminal in states around
the world. Homophobia is much more accepted discrimination than e.g. racism and sexism.
Secondly, the absence of effective organizations on local, national, regional and international
level, a reason for this could be that homosexuals do not have natural institutions as churches
and school like some cultural and racial minorities has.74 Lastly, there were many states that did
not want them on the arena, often on religious ground, and blocked them out. Especially states
with Roman Catholics and Islamic majorities were the obstacles.75
66
Richards, Identity and the Case for Gay Rights, p.85 f.
67
68
Waaldijk, Clapham, Homosexuality: A European Community Issue, Essays on Lesbian and Gay Rights in
European law and Policy International Studies in Human Rights, Vol. 26 1993, Dordrecht: Nijhoff, p.xv.
69
70
Waaldijk & Clapham, Homosexuality: A European Community Issue, p.xv.
71
Waaldijk & Clapham, Homosexuality: A European Community Issue, van deer Veen & Dercksen, p.157.
72
73
Graupner & Tahmindjis, Sexuality and Human Rights: A Global Overview, Tahmindjis, p.23.
74
Sanders, Getting Lesbian and Gay Issues on the International Human Rights Agenda, p.68 ff.
75
Ibid.

9
2.3. Decriminalization of Homosexual Activity
Homosexual activities have been criminal in many jurisdictions worldwide.76 France was the
first country decriminalizing homosexual activities in 1791. The year after both Belgium and
Luxemburg did the same, the Netherlands in 1811, Spain in 1822 and Italy followed in 1889.77
But it was not until the middle of the twentieth-century, when Denmark (1930), Poland (1932),
Switzerland (1942) and Sweden (1944) decriminalized the activities, a starting point for a wave
of decriminalization around the world began. Between 1961 and 1995 about 40 states and some
autonomous regions78 decriminalized homosexual activities.79 According to the
recommendations from the Council of Europe’s (CoE) Committee of Ministers (CM), member
states to ECHR should abolish all legislation that criminalizes homosexual acts between
consenting adults, which includes discriminatory legislation that has different age of consent for
homosexual and heterosexual acts.80 Today, all contracting members of the ECHR have
decriminalized homosexuality.81 But even though most states in the world has decriminalized
homosexual activity, it’s important to point out that it still remains a criminal offence in some
states. Homosexual activity can be punished today with everything from fines, restrictions and
penal labor82 to imprisonment from less than ten years83 or more than ten years84 and even
death penalty.85
2.3.1. Dudgeon v. The United Kingdom
In 1976 the Commission received an application from Jeffrey Dudgeon,86 a 35 year old
homosexual man from Northern Ireland, United Kingdom. The case was later forwarded to the
ECtHR and the judgment came on October, 1981. Mr. Dudgeon’s complaint primary concerned a
law, from 1861 and which only existed on Northern Ireland. The law criminalized homosexual
acts between two consenting males, but the law did not criminalized homosexual acts between
two females.87 The complaint also concerned an incident, in 1976, when the police went to Mr.
Dudgeon’s house to execute a warrant regarding drugs. The police found personal papers, like
correspondence and diaries, which associated to homosexual activities in his house, and the
76
77
Wintemute, Sexual Orientation and Gender Identity Discrimination: The Case Law of the European Court of
Human Rights and the European Court of Justice, Summary prepared for ILGA-Europe to submit to Mr. Thomas
Hammarberg, Commissioner for Human Rights, Council of Europe. 20 Oct. 2006 (updated 11 June 2008)
paragraph.1.
78
Among these: Hungary (1961), England and Wales (1967), Bulgaria (1968), German Democratic Republic
(1968), Canada (1969), Federal Republic of Germany (1969), Finland (1971), Austria (1971), Norway (1972),
Scotland (1980), Northern Ireland (1982), Ukraine (1991), Russian Federation (1993), Ireland (1993), Albania
(1995). (Sanders, Getting Lesbian and Gay Issues on the International Human Rights Agenda, p. 71).
79
80
Council of Europe, Committee of Ministers, recommendations to member states on measures to combat
discrimination on grounds of sexual orientation or gender identity, paragraph 18.
81
Council of Europe, The Parliamentary Assembly Resolution (2010), paragraph 1.
82
In Angola and Mozambique (www.ilga.org, map on the leftside).
83
In Jamaica, Lebanon, Oman, Egypt, Tunisia, Morocco, Algeria, Senegal, Guinea, Togo, Cameroon, Zimbabwe,
Botswana, Burma, Bhutan, Sri Lanka, Turkmenistan, Afghanistan, Pakistan, Indonesia and Uzbekistan.
(www.ilga.org, map on the leftside).
84
In Guyana, Ethiopia, Ghana, Libya, Sierra Leone, Malawi, Zambia, Uganda, Tanzania, Kenya, Malaysia,
Bangladesh and Papua New Guinea. (www.ilga.org, map on the leftside).
85
In Yemen, Iran, Qatar, Saudi Arabia, Somalia, Sudan, Nigeria and Mauritania. (www.ilga.org, map on the
leftside).
86
Dudgeon v. The United Kingdom, Application No. 7525/76, Judgment 22 October 1981, paragraph 1.
87
Dudgeon v. The United Kingdom, paragraph 13-15.

10
papers were confiscated by the police. Mr. Dudgeon was called to the police station and was
questioned about this sexual life, but was later released. After a few weeks the papers were
returned to him, with annotations over them. Mr. Dudgeon was not prosecuted since the
Attorney General and the Director of Prosecution did found that it would be in the public
interest to do so. Mr. Dudgeon claimed that the very existence of the law and the police
investigation was an unjustified interference of his right to private life. He also claimed that he
had suffered because of an unjustified discrimination. The question for the Court to handle was,
whether these two complaints were a breach of Article 8, right to private life, alone or together
with Article 14, non-discrimination, of the ECHR.88 Just as the Commission, the Court agreed that
the very existence of the law had both a constantly and directly effect on Mr. Dudgeons private
life. They also held that the police investigation had a directly effect on his right to private life.
The Court also recognized that “one of the purposes of the legislation is to afford safeguards for
vulnerable members of society, such as the young, against the consequences of homosexual
practices.” Though, they found this rather “artificial in this context to draw a rigid distinction
between ‘protection of the rights and freedoms of others’ and ‘protection of morals’.”89 The
Court made it clear that they did not tend to make any value-judgment concerning the morality
of homosexual relations between adult males. They found that regulations of male homosexual
conduct, in some degree, were justified as “necessary in a democratic society” and that the
necessity could even reach as far as acts committed in private. The question they had to deal
with was whether the laws and its enforcement stayed within what could be necessary in a
democratic society to accomplish the aims of the legislation. The Court point out that if an
interference was “necessary in a democratic society” depended on whether there was a
“pressing social need”90 and could not be done unless it was proportionate to the legitimate aims
pursued. The ECtHR realized that state authorities in general know better what kind of moral
values that exists in their state than the Court, and that the margin of appreciation91 is extra
strong when it comes to issues of moral values. Though, the width of the margin of appreciation
depends not only on “the nature of the aim of the restriction but also [on] the nature of the
activities involved”.92 Since this case concerned a very intimate part of the private life, the Court
concluded that it must be a very serious reason for the interference to be legitimate under article
8, paragraph 2.93 In the final evaluation, the court mention that there was a better understanding
and increased toleration of homosexuality in the member states and that Northern Ireland was
an exception. Because of the higher tolerance in Europe, it was “no longer considered to be
necessary or appropriate to treat homosexual practices of the kind now in question”.94 The
Court argued that they could not overlook these changes and since that there had not been any
public demands of a stricter enforcement of the law, they could not found an existence of
88
89
Dudgeon v. The United Kingdom, paragraph 41-47
90
Dudgeon v. The United Kingdom, paragraph 49-54
91
Since, according to the court, “states authorizes are in principle in a better position than the international
judge to give an opinion… on the ‘necessity’ of a ‘restriction’ or ‘penalty’” member states has a margin of
appreciation. (Handyside v. The United Kingdom, Application No. 5493/72, Judgment 7 December 1976,
paragraph 48-49.) The margin of appreciation doctrine is developed by the ECtHR, which allows them to
interpret the convention differently between states, depending on e.g. the cultural and legal traditions
differences of the member states. (Ovey & White; Jacobs & White, the European Convention on Human Rights,
2006,Oxford; Oxford Univ. Press p. 52-54).
92
Dudgeon v. The United Kingdom, paragraph 52 -53.
93
Ibid.
94
Dudgeon v. The United Kingdom, paragraph 60.

11
“pressing social need”.95 In the Court’s verdict, it was settled that Mr. Dudgeons right to respect
for private life according to article 8 of the Convention had been violated and
“the reason given by the Government… are not sufficient to justify the maintenance in force of
the impugned legislation in so far as it has the general effect of criminalising private homosexual
relations between adult males capable of valid consent, in particular, the moral attitudes towards
male homosexuality in Northern Ireland and the concern that any relaxation in the law would
tend to erode existing moral standards cannot, without more, warrant interfering with the
applicant’s private life to such an extent.”
The Court also recognized that the very existence of the law had damaging effect on the life of a
person of homosexual orientation96 and concerning a breach of article 14, they did not found it
necessary to examine this part of the case, since there was “no useful legal purpose” to do so.97
Dudgeon v. UK was, without a doubt, a breakthrough for gay rights. Both in the fact that that this
case were the first case involving homosexuality to be heard by the Court98 and that the decision
were in favor for the recognition of gay rights. The judgment included one very important core.
This was that fact that the Court established that there had been a change of the tolerance
towards homosexual relations in Europe and that this development should be taken into account
for the judgment and the interpretation of the Convention. After the decision, homosexual
activities were decriminalized in Northern Ireland and in other parts of the United Kingdom. In
1991, the case of Norris v. Ireland99 result in a reformation of the Irish law and the same thing
happen 1995, in Cyprus after been convicted in the case of Modinos v. Cypus100 from 1993.101
The Dudgeon case has also had a great impact on the demands for entering CoE. After the fall of
the Soviet Union, a lot of eastern European states wished to join the CoE during the 90’s. The
requirement to join the CoE was to ratify the ECHR, which also intended a decriminalization of
homosexual activities. It resulted in decriminalization of homosexual activities in states like
Lithuania, Estonia and Latvia.102 Van Dijk emphasizes that the case of Dudgeon was the first step
towards a protection for homosexuals against discriminatory legislation and administrative
practice.103 The effect the Dudgeon case has had on Europe is obvious, but this case has had
impact outside Europe too. In the case of Lawrence v. Texas from 2003, the American court cited
the ECtHR from the Dudgeon case104 and it could be possible that if this case would not have
been in favor for Mr. Dudgeon, the Human Rights Committee would have interpreted the ICCPR
in a different way in the following case.
95
96
97
98
Sanders, Getting Lesbian and Gay Issues on the International Human Rights Agenda, p. 78, note 45.
99
This case concerned an Irish legislation that penalized homosexual acts by consenting males in private. Norris
v. Ireland, Application No. 10581/83. Judgment on 26 October 1988.
100
This case concerned a likewise legislation as in the Norris case. Modinos v. Cyprus, Application No.
15070/89, Judgment on 22 April 1993.
101
Wintemute, Sexual Orientation and Human Rights, p.93 f.; Graupner & Tahmindjis, Sexuality and Human
Rights: A Global Overview, Tahmindjis p.14.
102
Wintemute, Sexual Orientation and Human Rights, p.94.
103
Waaldijk & Clapham, Homosexuality: A European Community Issue, van Dijk, p.188.
104
Goldhaber, A People’s History of the European Court of Human Rights, 2007, New Brunswick, N.J.:Rutgers
University Press, p.183.

12
2.4.2. Toonen v. Australia
Before 1994, ECHR had been the only convention on human rights that had been used to sue for
discrimination on the ground of sexual orientation.105 But in 1994 the Human Rights Committee
(“the Committee”) concluded their view on the case Nicholas Toonen v. Australia.106 The
Committee’s authorization to examine individual complaints states in the first article of the
Optional Protocol to the International Covenant on Civil and Political Rights.107 The decisions of
the Committees are recommendations and because of this, their interpretations are not
binding.108 Their aim is not to clarify the text of the Covenant, but “to urge the government to
provide a specific remedy to the aggrieved individual”.109 Mr. Toonen, an Australian citizen living
in the Australian state of Tasmania, claimed that he had become a victim of a violation of article
2, paragraph 1, article 17 and 26 of the ICCPR (see section 2.5.) 110 He was a leading member of
the Tasmanian Gay Law Reform Group and had challenged two provisions of the criminal code of
Tasmania. The provisions criminalized different forms of homosexual activities between males,
which included “all forms of sexual contacts between consenting adult homosexual men in
private.”111 The provisions authorized the police to investigate intimate aspects of the person’s
private life, if they had any reasons to believe that a person where involved in these prohibited
activities. Mr. Toonen argued that the provision threatened his private life and his liberty. Mr.
Toonen further argued that the provisions did not allow him to expose his sexuality and to
spread his view on a reformation of laws, that concerned sexual matters, and that this would be
extremely damaging for his employment.112 The Committee found that it was “indisputed that
adult consensual activity in private was covered by the concept of ‘privacy’ and that Mr. Toonen
was affected by the continued existence of the Tasmanian laws”.113 They also enhance that the
existence of the provisions directly and continuously interfered with Mr. Toonens privacy.114
The Committee could not accept the criminalization as a reasonable mean or proportionate
measure to secure public health, in this case prevent the spread of AIDS/HIV. The Committee
also point out that “no links has been shown between the continued criminalization of
homosexual activity and the effective control of the spread of the HIV/AIDS virus.”115 They found
that Mr. Toonens right under article 17, paragraph 1 and article 2, paragraph 1 had been
violated, because the provision was not reasonable in this case. The Commission also concluded
that sexual orientation was included in the term of “sex” in article 2, paragraph 1. However, they
did not found it necessary to consider whether there had been a violation of article 26.116
The Tasmanian government did not follow the decision of the Committee and kept the law, but a
few years after the law was abolished.117 The Toonen case had a visible effect on the future work
of the Committee and in their review of the state parties; they now include a concern of anti-
105
106
Toonen v. Australia, Communication No. 488/1992, Human Rights Committee, Fiftieth Session, preface.
107
(First) Optional Protocol to the International Covenant on Civil and Political Rights , Adopted by United
Nations General Assembly in 16 December 1966, Entry into force 23 March 1976, Article 1.
108
Wintemute & Andenæs, The legal recognition of same-sex partnerships, Helfer, p.735 f.
109
Ibid.
110
Toonen v. Australia, paragraph 1.
111
Toonen v. Australia, paragraph 2.
112
Ibid.
113
Toonen v. Australia, paragraph 8.2.
114
Ibid.
115
Toonen v. Australia, paragraph 8
116
Ibid.
117
Graupner & Tahmindjis, Sexuality and Human Rights: A Global Overview, Tahmindjis p.13 f.

13
homosexual criminal laws.118 Wintemute emphasize that “the committee’s reasoning differed
from, or could be said to go beyond, that of the ECtHR”; firstly, because the Committee rejected
the argument “prevention of AIDS”. Secondly because the Committee rejected the argument of
“protection of morals”, which was used as a justification by referring to a “national
consensus”.119 Thirdly, because the Committee held a quite brief discussion on the topic of
discrimination and, just like the ECtHR, handled the question as a question of “’pure liberty’…
rather than one of ‘discriminatory interference with liberty’ or ‘pure equality’.”120
2.4. Right to Respect for Private and Family Life
Article 17 in the ICCPR
“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or
correspondence, nor to unlawful attacks on his honour and reputation.”
121
The committee does not give a definition of the meaning of “family”, but does express that
“family” should be interpret broadly so it includes all members that the society of the states
understands as family.122
Article 8 in the ECHR
“Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as
is in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder
or crime, for the protection of health or morals, or for the protection of the rights and freedoms
of others.”
123
This rights purpose is to ensure that individuals can develop and fulfill their personalities, which
includes be able to establish and develop relationships with other human beings.124
In the 50’s and 60’s the Commission approved the prohibitions of homosexual activity between
males, which fell under article 8, paragraph 1, was justified under article 8, paragraph 2. In many
cases, the Commission has expressed that sexual activities fall within the sphere of private life125
and has concluded that same-sex couples do not have the right to family life.126 Their meaning of
“the family” was understood as “heterosexual unmarried couples living together as husband and
wife”.127 But in 1997, the Court expressed another view and said that all family relationship falls
118
119
120
121
ICCPR, Article 17, paragraph 1.
122
CCPR General Comment No.16, paragraph 5.
123
ECHR, Article 8, paragraph 1-2.
124
125
126
127
S. v. The United Kingdom, Application No. 11716/85, Commission, paragraph 7.

14
under the article. The Court mentioned some factors that could be seen as evidence for a
relationship of this kind; “whether the couple live together, the length of their relationship and
whether they have demonstrated their commitment to each other by having children together or
by any other means”.128 In the judgment of Emonet and Others v. Switzerland from 2007, the
Court made it clear that “family life” could be enjoyed by unmarried partners or couples who live
together, without having children.129
2.5. Discrimination Based on Sexual Orientation
According to Van deer Veen and Dercksen, homosexuals have and still are exposed to a social
discrimination and this creates a barrier for them to achieve a social well-being and limit their
possibility to participate in social life.130 Sexual orientation is today a recognized prohibited
ground of discrimination.131
There is a difference between how lesbians and gays can experience discrimination. Lesbians
can, apart from discrimination because of sexual orientation, also become a subject to
discrimination because of their gender, e.g. women have through history been valued because of
their association to man, as a wife or a mother, but not for themselves. Since lesbians do not
have this connection to a man, they had been undervalued and invisible. This is not just in
general, even within the homosexual community, lesbians are relative invisible and as a
consequence, the “lesbian issues are sometimes accorded second place in terms of the lobbying
agenda.”132
2.5.1. In the ICCPR
“Article 2
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the present Covenant,
without distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.”
133
“Article 26
All persons are equal before the law and are entitled without any discrimination to equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to
all persons equal and effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion or social origin, property, birth or other
status.“
134
Together, equality before the law, equal protection of the law without any discrimination and
non-discrimination, are fundamental and general principles for the protection of human
128
X, Y and Z v. The United Kingdom, Application No.21830/93, Judgment 20 March 1997, paragraph 36.
129
Emonet and Others v. Switzerland, Application No. 39051/03, Judgment 13 December 2007, paragraph 82.
130
131
Council of Europe, The Parliamentary Assembly, Resolution (2010) paragraph 2.
132
Waaldijk & Clapham, Homosexuality: A European Community Issue, p.xv.
133
ICCPR, Article 2.
134
ICCPR, Article 26.

15
rights.135 The term discrimination should, according to the committee,
“be understood to imply any distinction, exclusion, restriction or preference which is based on
any ground such as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status, and which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights
and freedoms.”
136
In the Toonen case, the Commission did conclude that sexual orientation is included under
“sex” in article 2.137
2.5.2. In the ECHR
As a major human rights instrument, it could be somewhat surprising that in the creation of the
ECHR, a general prohibition for discrimination was not included. The reason for this was a big
resistance from member state of the CoE to accept this sort of right as a part of the Convention.
But in 2000, the CM approved Protocol No. 12,138 which included a general prohibition clause.139
However, ECHR does include a prohibition of discrimination, but its protection is limited.
“Article 14
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority, property, birth or other
status.”
140
This article is dependent on other articles in the convention and cannot be violated and invoked
on its own. Because of this, the article only prohibits discrimination in the enjoyment of the
rights and freedoms in the Convention, not other kinds of discriminations like race or sex
discrimination.141 Because there are no “freedom of race” or “freedom of (biological) sex”, the
consequence is that a lot of discrimination cases fall outside the Convention.142 But the ECtHR
have develop its view on the Article, and stated it is not necessary that any right or freedom have
been violated and that
“a measure which in itself is in conformity with the requirements of the Article enshrining the
right or freedom in question may however infringe this Article when read in conjunction with
Article 14 for the reason that it is of a discriminatory nature.”
143
135
136
137
Toonen v. Australia, paragraph 8.6-7.
138
Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 2000.
139
Loucaides, The European Convention on Human Rights: collected essays, 2007, Leiden, Martinus Nijhoff
Publishers, p.56 f.
140
ECHR, Article 14.
141
142
143
Relation to certain aspects of the laws on the use of languages in education in Belgium (“the Belgian
Linguistic Cases”) Application No. 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64), Judgment of 23
July 1968, B paragraph 9.

16
This view is important in the light of discrimination based on sexual orientation, this because a
justified interference in the private sexual life by the public authorities, based on Article 8,
paragraph 2, still would occur in a discriminatory way.144
The ECHR was made in 1950 and the ICCPR in 1966, but “why has it taken so long for a political
consensus to develop against sexual orientation discrimination”?145 Among many possible
answers, Wintemute suggests that a reason could be that homosexuals constitute a minority that
is relative invisible, unlike other groups that have been subjects to discrimination, like women.
But also because homosexuals are a minority in all states world over, unlike other racial and
religious minorities that usually is a majority in at least one state. However, he emphasizes the
biggest hurdle to get pass is “the fact that prohibiting sexual orientation discrimination requires
the protection of a new area of individual choice or freedom.”146 But are there any grounds that
could justify discrimination based on sexual orientation? Clapham and Weiler suggest that these
reasons could be argument of the traditional idea of the family, religion, culture and morals. But
they emphasizes that this justification must “show that this type of protection of this cultural
heritage is really necessary in a pluralistic democratic society”,147 and show a reason to deny
homosexuals right “which others enjoy because they are inherent in human dignity.”148
144
145
146
Ibid.
147
Waaldijk & Clapham, Homosexuality: A European Community Issue, Clapham & Weiler, p.68.
148
Ibid.

17
3. Same-Sex Couples Right to Marriage
The natural order of the development of gay rights in democracies in Europe and North America
has been the following; firstly, the decriminalization of homosexual acts, secondly, the
prohibition of discrimination on grounds of sexual orientation and thirdly, on terms of equality
with opposite-sex partnerships, recognition of same-sex partnerships and this also includes
same-sex marriage.149
The fundamental right to marriage is guaranteed in a number of jurisdictions constitutions and
human rights treaties. The right has been interpreted as a right for one man and one woman, in
other words, a right for a heterosexual couple.150 Some people claim that “homosexuals are not
deprived of the right to marriage because they still remain able to marry a person of the
opposite sex.“151 Same-sex relationships had before the 21th century been given little attention
in the UNs human rights system152 and at the present time, it has still not been a judgment by an
international court on whether right to marriage is a right for same-sex couples or not. But at
present, two cases on this topic are pending before the ECtHR, Schalk and Kopf v. Austria and
Chapin and Charpentier v. France.153
Within and outside the gay and lesbian movement, the issue of same-sex relationships right to a
social and legal recognition is a subject of much debate. The debate concerns whether
recognition of same-sex partnerships is the ultimate goal for the movement or not. Some
homosexuals do not see the marriage as something to pursue, since they see marriage as an
institution that just emphasizes women’s and homosexual’s unequal position in the society.
Other like “the individualization of rights” and wishes to remove the social and legal benefits
that comes with marriage. Other homosexuals do not believe in that kind of a “social revolution”
and believes is more important to make sure that homosexuals can enjoy the right of marriage
and all the privilege that comes with it. There also them who urge that partnership is a better
word than marriage, since it does not associate with religion. But of course, there are those who
find that the religious part of marriage is just as important as the social and legal.154
3.1. Marriage - A Legal Contract
Marriage is a social institution and has a lot of functions in the society.155 Even though marriage
is very associated with a religious and spiritual ceremony, the marriage is also a legal and civil
contract between two people and it is bound to certain responsibilities, rights and social
benefits.156 But the contract does not only concern the two contracting partners, it is also a
contract between the partners in the marriage and their joint child, between the state and the
149
Richards, The Case for Gay Rights: From Bowers to Lawrence and Beyond, 2005, Lawrence, Kan.:University
Press of Kansas, p.101.
150
Waaldijk & Clapham, Homosexuality: A European Community Issue, Waaldijk, p.91.
151
152
Wintemute & Andenæs, The legal recognition of same-sex partnerships, Walker, p.743.
153
See Chapter 3.4.2.
154
155
156
Wintemute & Andenæs, The legal recognition of same-sex partnerships, Whittle, p.693.

18
married partners and between the state and the married couple’s child.157 The deep founded
view of marriage is that it concerns one man and one woman158 and the marital status have
traditionally “been used as determining criterion in many branches of law, including”: family
law, property law, inheritance law, immigration law, nationality law, tax law, social security law
and pension law. 159 As mentioned above, the marriage is also accompanied with certain rights
and benefits that the state provides.160 These rights and benefits marriage could bring is the
following;
 Financial benefits as; tax benefits, survivor pension benefits and the right to automatic
inheritance,161
 Non-financial benefits as; preferential immigration rights for a partner,162
 Financial benefits for couples caring children like; provision of child care, pain
maternity or parental leave and tax benefits.163
 Non-financial recognition of relationships involving children like; e.g. child custody,
provisions of child care, adoption.164
Louw emphasizes that marriage is not only a union between two people: it is also a “social
endorsement of relationship that if extended to gays and lesbians will enhance their social
acceptance”.165 Waaldijk states that marriage is important as a symbol of social and religious
status166 and it is discriminatory only letting marriage be available for heterosexuals, since it
excludes same-sex couples from e.g. legal benefits.167
3.2. The Right to Marriage in Human Rights Conventions
3.2.1. Article 23 in the ICCPR
“1. The family is the natural and fundamental group unit if society and is entitles to protection by
society and the State.
2. The right of men and women of marriageable age to marry and to found a family shall be
recognized.“
168
The Committee has not closer defined the concept of the family in article 23. This is because
states see family in many different ways and that each state party should ensures the protection
for the family in their own apprehension of the term.169 Tahmindjis says that this clearly
indicates that it is up to states themselves to determine whether legal same-sex unions should
157
Wintemute & Andenæs, The legal recognition of same-sex partnerships, Whittle, p.694.
158
Ibid.
159
Waaldijk & Clapham, Homosexuality: A European Community Issue, Waaldijk, p.91 f.
160
161
Graupner & Tahmindjis, Sexuality and Human Rights: A Global Overview, Louw, p.154.
162
Ibid.
163
Ibid.
164
Ibid.
165
Ibid.
166
167
Ibid.
168
ICCPR, Article 23, paragraph 1 and 2.
169
CCPR General Comment No. 19, paragraph 2.

19
be tolerated or not.170 Concerning the right to marriage, the Committee does not mention
anything about same-sex marriage in their comment. However, the Committee has expressed
that legal provision for marriage “must be compatible with the full exercise of the other rights
guaranteed by the Covenant”.171 They do not recognize that same-sex couples have the right to
marry each other,172 because this right is the only article in the Covenant that are using the term
of “men and women”, and that it “has been consistently and uniformly understood as indicating
that the treaty obligation… is to recognize as marriage only the union between a man and a
woman wishing to marry each other”.173 As Tahmindjis puts it, homosexuals have the right to
marry according to the article, but with the condition that they marry someone from the
opposite sex.174 He also points out that the human right to marry is understood in strictly
biological and heterosexist terms175 and therefore, the marriage for same-sex couples is not a
right, but could instead it could be a privilege given by the state.176
3.2.2. Article 12 in the ECHR
“Right to Marry
Men and women of marriageable age have the right to marry and to found a family, according to
the national laws governing the exercise of this right.”
177
The Court has in the verdict of Rees v. the United Kingdom from 1986, expressed that the primary
purpose for this article is to “protect marriage as the basis of the family” and that the article only
is a guarantee for “the traditional marriage between persons of the opposite biological sex”.178
The court does not see the “essence of the right affected by total ban on same-sex... marriage”.179
It is up to the member states to exercise the right to marriage, but this does not mean that the
member states themselves can decide on what conditions and formalities a marriage could be
entered and dissolute by. The states “are not allowed to interfere with the very essence of the
right, to bar people from marriage under any circumstances.”180
The concept of family and marriage does not have an automatic link between them,181 but van
Dijk wonders “why should the opposite be the case?”. He argues that even though there acually
were an intention by the drafters to have a link between family and marriage, it does not
automatically mean that it implies the traditional marriage, since the rights has a dynamic
interpretation of family.182
The Court has, since the verdict of Rees v. the United Kingdom, repeatedly constituted that same-
sex marriage is not a human right according to the Convention.183 Though, in 1991 in the verdict
170
171
CCPR General Comment No. 19, paragraph 4.
172
173
Joslin v. New Zealand, paragraph 8.2.
174
Graupner & Tahmindjis, Sexuality and Human Rights: A Global Overview, Tahmindjis, p.17 f.
175
Ibid.
176
177
ECHR, Article 12.
178
Rees v. The United Kingdom, Application No. 9532/81, Judgment 17 October 1986, paragraph 49-50.
179
180
Ibid.
181
Marckx v. Belgium, Application No. 6833/74, Judgment 13 June 1979, paragraph 31.
182
183

20
of Cossey v. the United Kingdom,184 the court emphasized that even though they had developed
their view when it comes to marriage, it could not be said to evidence185 “any general
abandonment of the traditional concept of marriage”.186 However, four dissenting judges in the
case express their critic against the Courts view on marriage. Among these four judges, Judge
Martens were the perhaps most outstanding of them and argued that
“Marriage is far more than a sexual union, and the capacity for sexual intercourse is therefore
not "essential" for marriage. Persons who are not or are no longer capable of procreating or
having sexual intercourse may also want to and do marry. That is because marriage is far more
than a union which legitimates sexual intercourse and aims at procreating…a species of
togetherness in which intellectual, spiritual and emotional bonds are at least as essential as the
physical one.”
187
However, Judge Martens did not say anything about same-sex marriage and emphasized that the
article clearly indicates by using terms of “men” and “women” that marriage is between two
persons of the opposite sex.188 In 2002 the Court did however ruled in favor for a transsexual
person’s right to marry a person of biologically the same sex.189 On this basis, Graupner suggests
that a pro same-sex marriage argument could be that a homosexual only is a human, who lives
with a person of the same sex and wished to marry this person, and “when they have no
possibility of doing so, the very essence of their right to marry is infringed”.190 According to the
recommendations from the CM, in states where legal unions between same-sex couples are
recognized, the member states should guarantee that these same-sex legal union rights and
obligations are equal in a comparable situation to a different-sex legal union.191 Despite this, the
evaluation of whether a same-sex couple is in a “comparable situation” with a different-sex
couple, is under national law and left to the domestic authorities to appreciate.192 However, in
states where registered partnerships and unmarried same-sex couples are not recognized and
offered the rights and obligation like the one that comes with marriage,193 states should consider
to provide “same-sex couples with some legal or other means to deal with the practical problems
arising from this lack of legal recognition.”194 The CM emphasizes that the right to marriage
refers to the traditional marriage, between two persons of the opposite sex, but does recognizes
that it has been concluded that the absence of access to marriage or similar union for “same-sex
couples has a negative impact on the effective protection of lesbian, gay, bisexual and
transgender persons’ human rights.”195
184
Cossey v. The United Kingdom, Application No. 10843/84, Judgment 27 September 1990.
185
186
Cossey v. The United Kingdom, paragraph 46.
187
Cossey v. The United Kingdom, Dissenting Opinion of Judge Martens, paragraph 4.5.2.
188
Cossey v. The United Kingdom, Dissenting Opinion of Judge Martens, paragraph 4.5.1.
189
Goodwin v. the United Kingdom, Application No. 28957/95, Judgment 11 June 2002.
190
191
192
Council of Europe, Committee of Ministers, Explanatory Report to Recommendation on measures to combat
193
Council of Europe, recommendations to member states on measures to combat discrimination on grounds
of sexual orientation or gender identity, paragraph 25.
194
Council of Europe, Explanatory Report to Recommendation on measures to combat discrimination on
grounds of sexual orientation or gender identity, paragraph 25.
195
Ibid.

21
3.3. The Legal Status for Same-Sex Couples
Denmark was the first state that recognized same-sex couples by giving them an opportunity to
a legal status, the enactment was called registered partnership and was created in 1989.196 The
registered partnership included most of those legal rights, benefits and obligation that comes
with marriage, thus with some exceptions like: “joint custody over children, adoption and some
widows’ pensions.”197 Two years after the enactment was adopted, about 492 lesbian and 809
gay partnerships had been registered. 198 Just a few years after Denmark, both Norway (1993)
and Sweden (1994) adapted the same law.199 Since then, more than 20 countries have legislated
similar enactments.200
Most of the enactments that offers same-sex couples legal relationships recognition are not
marriage per se, but a substitute which gives them at least some of the rights, social benefits and
responsibly that both married and unmarried different-sex couples already enjoys.201 The name
for the substitute marriage is rich and is called everything from; 202 registered partnership (as
mention above),203 to civil unions,204 stable unions,205 significant relationships,206 statutory
cohabitations,207 domestic partnership,208 civil solidarity pacts,209 life partnership210 and
confirmed cohabitations.211
Van Deer Veen and Dercksen points out that same-sex couple are exposed to a social
discrimination and that this have an effect on their everyday life, since they are excluded from
the marriage institution and the social benefits that comes with it.212 Louw argue that the denial
of namning legal same-sex union’s marriage is a form denial of substantive equality. He claims
that “marriage remains a privilaged social institution for hetrosexual couples, but most
importantly, it retains the exclusivist traditional and religious content and the less tangiable
connotations of marriage.”213
3.3.1. Unmarried Couple Rights
In the decision of Karner v. Austria214, the ECtHR for the first time held that unmarried same-sex
couples have the same rights and obligations as unmarried different-sex couples. The right of
non-discrimination is a prohibition that prevents states to not refuse social benefits on non-
196
197
198
Ibid.
199
200
Wintemute & Andenæs, The legal recognition of same-sex partnerships, Helfer, p.733.
201
Ibid.
202
Curry-Sumner, Interstate Recognition of Same-Sex Relationships in Europe, The Journal of Gender, Race &
Justice, 13:2009, p.69
203
In Denmark, Finland, Luxembourg.
204
In Canada; Quebec, New Zealand.
205
In Andorra.
206
In Australia; Tasmania.
207
In Belgium.
208
In Canada; Nova Scotia, USA; California, Maine, New Jersey.
209
In France.
210
In Germany.
211
In Iceland.
212
213
Graupner & Tahmindjis, Sexuality and Human Rights: A Global Overview, Louw, p.155.
214
Karner v. Austria, paragraph 37–42.

22
objective grounds215 and the member states of the ECHR are recommended to ensure that both
same-sex and different-sex unmarried couples enjoy the same rights and obligation in states
where these rights and obligations are given.216 If they do not do this, it would be a breach of
Article 8 and 14 of the ECHR.217
3.4. Case Law
3.4.1. Decided
Joslin v. New Zealand
The authors of this communication were two lesbian couples, which both had applied to get
married under the Marriage Act of New Zealand, but been refused to do so.218 The complaint
claimed that couples had become subjects to a violation of article 26 of the ICCPR, in view of the
fact that the refusal was based on sex and indirectly on sexual orientation and because they had
been denied to get married, they argued, they had therefore been “excluded from full
membership of society”.219 The couples also claimed that article 17 of the ICCPR alone and in
combination with article 2, paragraph 1 had been violated, since their relationships included
everything that could ascribe as family life,220 including children.221 At last they claimed that
there had been a violation of article 23, paragraphs 1 and 2 in combination with article 2,
paragraph 1. According to the article, families should be recognized in a non-discriminatory way,
which the couples claimed that the Marriage Act did not do, and that men and women’s rights to
marriage should be interpret as there’s no distinction, like prohibitions on basis of sex or sexual
orientation.222 The Committee concluded that article 23 was the relevant article for this case and
that the article should be interpreted as to be understood as an indication that marriage is a
union between a man and a woman.223 The Committee did not found any violation of the invoked
articles.224
3.4.2. Ongoing
Schalk and Kopf v. Austria225
The two applicants of this case are a same-sex couple, whose application to get married had
been turn down by the state authorities of Austria, due to that marriage is a contract between
two persons of the opposite sex. The couple appealed and the national court submitted that the
couple did not have the right to marry, according to their interpretation of article 12 in the
ECHR. Nor could they see that article 8 and 14, in their interpretation of the ECHR, supported
215
216
discrimination on grounds of sexual orientation or gender identity, paragraph 23; Council of Europe, The
Parliamentary Assembly, Resolution 1728 (2010) paragraph 16.9 (1).
217
Council of Europe, Committee of Ministers, Explanatory Report to Recommendation on measures to combat
218
Joslin v. New Zealand, paragraph 2.1-2.
219
220
221
222
223
224
225
Schalk and Kopf v. Austria, Application No. 30141/04.

23
same-sex marriage. The couple complaint to the ECtHR concerning that they have been a subject
to a breach of article 12 and 14 in combination with article 8, since they had been discriminated
because of their sexual orientation and because they had no other option to get their
relationship recognized by the law. The case was recently heard in a chamber hearing.226
Chapin and Charpentier v. France227
The case regards two men who got married, but their marriage was later annulled by the French
court. Their complaint concerns a breach of article 8, 12 and 14 of the ECHR, this because the
French courts has omitted their positive obligation that each member state has, to make sure
that all its citizen has the right to respect for private life, regardless from sexual orientation.228
According to Wintemute, this case will raise a number of questions that the ECtHR has to deal
with. The biggest is whether a European consensus now has grown enough so the Court can
“(1) to declare that a same-sex couple (without children) enjoys ‘family life’ for the purpose of
Art. 8… (2) to interpret Art. 12 (alone or combined with Art.14) as requiring CoE members states
to grant equal access to legal…marriage to same-sex couples; or (3) to interpret Art 14. combined
with Art 8…as prohibiting CoE member states from: (a) attaching rights and obligations to legal
marriage, (b) excluding same-sex couples from legal marriage, and (c) providing same-sex couples
with no other means of proving their relationships in order to qualify for these rights and
obligations.”
229
3.5. The Current Situation
3.5.1. State Recognition of Same-Sex Marriage
About 50 jurisdictions in the world have some sort of legal recognition for same-sex couples.230
But only nine states and some federal states jurisdictions offers same-sex couples to get married
equal to different-sex couples marriage.231 These are;
 The Netherlands232
 Belgium233
 Canada234
 Spain235
 South Africa236
 Norway237
 Sweden238
 Portugal239
226
Chamber Hearing 25 February 2010, Schalk and Kopf v. Austria.
227
Chapin and Charpentier v. France, Application No. 40183/07.
228
Council of Europe, European Court of Human Rights, No. 40183/07.
229
Robert Wintemute, Written Comments on Chapin and Charpentier v.France, p. 1, paragraph 3.
230
Curry-Sumner, Interstate Recognition of Same-Sex Relationships in Europe, p.59
231
Willoughby, Lewis v. Lewis and Non-Married Partner Litigation, Colorado Lawyer, January 2010, p.6.
232
Ibid.
233
Ibid.
234
Ibid.
235
Willoughby, Lewis v. Lewis and Non-Married Partner Litigation, p.6.
236
Ibid.
237
Ibid.
238
Ibid.

24
 Argentina240
 USA241; Massachusetts, Connecticut, Iowa, Vermont, New Hampshire242 and Washington
D.C.243
 Mexico; the federal district of Mexico.244
Luxembourg and Slovenia are expected to pass a laws that recognize same-sex marriage quite
soon, as well as Denmark, Iceland and the state of New York (USA).245
3.5.2. Statements by Courts Worldwide
A few Courts worldwide has during the beginning of the 21th century made important
statements for the recognition of same-sex marriages, here are some examples.
In a judgment from 2003, the Supreme Judicial Court of Massachusetts refused to see same-sex
couples become a second-class citizen and made it clear that recognition for an individual to get
married to a person from the same-sex would not weaken the core of different-sex marriage.246
In 2004, The South Africa’s Constitutional Court concluded that not allowing same-sex couples to
get married is discriminatory and that this exclusion
“represents a harsh if oblique statement by the law that same-sex couples are outsiders…that
their need for affirmation and protection of their intimate relations as human beings is
somehow less than that of heterosexual couples”247
This judgment meant that there had to be a change of legislation, and in 2006 same-sex couples
were permitted to get married in South Africa.248 In May 2008, The Supreme Court of California
found that it was a breach of the individual’s fundamental right to get married and the right to
equal protection to not allow same-sex couples to get married. They express that, the existing
view on marriage as a union between a man and a woman was unconstitutional, and that
marriage should be available for both different-sex and same-sex couples. This decision meant
that same-sex couples could get married in California. But just a few months after, in November,
the opportunity was abolished because of a new amendment denying access to same-sex
marriage.249 In 2009, the Constitutional Court of Slovenia claimed that same-sex register partner
have to be guaranteed the same inheritance right as different-sex couples and the same year, the
German Federal Constitutional Court stated that different-sex couples and same-sex registered
partners should have the right to the same survivor’s pension.250 Beyond the courts statements,
239
The Presidency of the Portuguese Republic, Declaration of the President of the Republic concerning the
Parliamentary Bill which allows the marriage between persons of the same gender, Lisbon, 17 May 2010.
240
Arce, Argentina Senate passes same-sex marriage legislation, Jurist July 15 2010
241
In USA, a federal consensus for same-sex marriage is impossible at present day. In 1996 The Defense of
Marriage Act (DOMA) was adopted and prohibits a federal recognition of same-sex marriage.
(Hrutkay, “Give me your tired, your poor, your huddled masses,” but not your homosexual partners, p.2.)
242
Willoughby, Lewis v. Lewis and Non-Married Partner Litigation, p.6.
243
Czajkowski, Supreme Court refuses to block DC same-sex marriage law, Jurist March 3 2010.
244
Castillo, Mexico City assembly legalizes same-sex marriage, The Seattle Times, December 21 2009.
245
Wintemute, Written Comments on Chapin and Charpentier v.France, p.4, paragraph 13.
246
247
Minister of Home Affairs v. Fourie; Lesbian & Gay Equality Project (Case CCT60/04, CTT10/05)
quotation through Wintemute, Written Comments on Chapin and Charpentier v.France, p.5, paragraph 18.
248
249
Wintemute, Written Comments on Chapin and Charpentier v.France, p.6, paragraph 19-20.
250

25
the king of Cambodia announced in 2004 that he supports same-sex marriage and even though
he has no executive powers, he is hugely revered.251
3.5.3. Why not same-sex marriage?
Turek argues that the recognition of same-sex marriage debate not is about e.g. equality or equal
rights, discrimination against a minority, denying same-sex couples to commit to each other,
sexual orientation, religion and not even about marriage.252 He claims that “the same-sex
movement has more to do with respect than rights”253 and it really is about the validation and
normalization of homosexuality that the right to marriage could bring them, and this with help
from the government. 254 Turek argues that by accepting same-sex marriage the consequence is
that “we will be sacrificing our children, our health, and our prosperity.”255 He also claims that:
1. “Natural marriage [the heterosexual marriage] is the foundation of a civilized
society.[256]
2. Homosexual behavior is inherently destructive.
3. The law is a great teacher, and it encourages or discourages behavior.
4. Government-backed same-sex marriage would encourage and normalize
homosexual behavior, and it would harm natural marriage, children, adults, and
homosexuals themselves.
5. The law should promote behaviors that are beneficial and prohibit (or at least not
endorse) those that are destructive.
6. Therefore, the law should promote natural marriage, and it should provide no
option for government-backed same-sex marriage or civil unions.“257
251
Cambodian king backs gay marriage, BBC News, February 20, 2004.
252
Turek, Correct, Not Politically Correct; How Same-Sex Marriage Hurts Everyone, 2008, Destiny Image. p.9 f.
253
Turek, Correct, Not Politically Correct, p.11 f.
254
Ibid.
255
Turek, Correct, Not Politically Correct, p.13.
256
He also claims that unmarried men cause society much more trouble than married men, in a “natural
marriage” and that the marriage is fundamentally about the production of children. He also wonders why not
sex partners could be interchangeable, especially when a mother or father could be that, according to the
homosexual activist. (Turek, Correct, Not Politically Correct, p.22 f).
257
Turek, Correct, Not Politically Correct, p.13 f.

26
4. Analysis
4.1. The Development of Gay Rights
Seemingly, homosexuality has been and still is a topic of much discussion, investigation and
explanation. But homosexuality is not a new phenomena, not even the present day tolerance
towards homosexuality is new, it has existed and been tolerated in many parts of the world
through history. But why it has taken so long to give homosexuals recognition as “healthy”
humans and give them some or all the rights as the heterosexuals have? I would like to
emphasize two relating possible reasons why it has taken so long for this recognition; the
criminalization of homosexual activity and the morals of religions.
4.1.1. The Criminalization of Homosexual Activity
One reason why the homosexual activity was criminalized was because of its classification as a
disease. Just as intentionally spreading the HIV-virus in some states is illegal today, the
homosexual activity was probably seen in a similar way. If the criminalization of homosexuality
had more intentions than just the protection from the disease is not told by the source, but
cannot be excluded. But we can today hopefully understand why the criminalization of
homosexual activity was made and why it could be difficult for some states to change their view
because of this.
The criminalization intentional consequence, I believe, are a creation of a natural negative
attitude towards the criminal activity, especially in this case when citizens appreciate the law
since they do not want to be contaminated with the disease. The problematic thing rises when a
disease no longer is classified as one and no longer is a danger for the citizens, and therefore do
not have to be illegal. How this change is handled is very different between states. More
conservative states, which implied religious, I believe, are naturally more restrictive to a
dramatic change of morals and values. However, in more liberal states, implied modern, I believe
are more open for a faster change of morals and values. This way to handle this change can be
shown in the number of cases which have concerned violations of human rights, regarding
homosexual, in the ECtHR. Both states as Ireland and Cyprus, common known as very religious
states, have been represented. On the other side, the more liberal and modern states as the
Netherlands and the Scandinavian states where early in the recognition of different gay rights,
like the registered partnership and later same-sex marriage. However, this should not be
interpret as a total generalization of all religious or liberal states, but an indication.
In Europe the ECtHR have been very important for the domestic changes of giving homosexual
rights. Because of the courts directly effect on member states and its contemporary approach,
the ECtHR have helped the gay rights to develop. On the international level however, it has been
harder for the ICCPR to have the same influence on member states domestic legislation. Though,
the Toonen case did have an effect, maybe not the same directly effect as the ECtHR:s verdicts,
but the committee did give important statements for pro gay rights arguments.

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