Law and Critique

, Volume 23, Issue 1, pp 43–66

Heteronormativity and the European Court of Human Rights

Authors

    • Department of SociologyUniversity of Surrey
Article

DOI: 10.1007/s10978-011-9096-z

Cite this article as:
Johnson, P. Law Critique (2012) 23: 43. doi:10.1007/s10978-011-9096-z

Abstract

This article examines a recent judgment by the European Court of Human Rights (E.B. v France) that upheld the complaint of a homosexual woman who alleged that her application for authorization to adopt a child had been refused by domestic French authorities on the grounds of her sexual orientation. I argue that the judgment constitutes an innovative and atypical legal consideration of, and challenge to, the heteronormative social relations of contemporary European societies. After exploring the evidence presented by the applicant, and the Court’s interpretation of it, I argue that in order to reach its judgment it was necessary for the Court to make a significant departure from its established jurisprudence in relation to sexual orientation. An essential element of this involved the adoption of a distinctive critical approach, strongly resonant with aspects of ‘queer theory’, which focused attention on the social, cultural and political construction of normative heterosexuality. Whilst a number of commentators have assessed the importance of the judgment in terms of its evolution of ‘gay rights’ in the area of family life, I argue that the Court’s reconceptualized ‘theoretical’ understanding of, and critical approach to, heteronormativity offers the potential to expand the scope of the European Convention on Human Rights across a number of areas of social life—in marriage, public assembly, freedom of expression, as well as family life—where non-heterosexuals continue to face discrimination in contemporary Europe.

Keywords

European convention on human rightsHeteronormativityHomosexualitySexual orientationQueer theory

Introduction

In January 2008, the Grand Chamber of the European Court of Human Rights (‘the Court’) upheld the complaint of an applicant, Ms. B., who alleged that ‘at every stage of her application for authorization to adopt [a child] she had suffered discriminatory treatment that had been based on her sexual orientation’ and that this interfered with her human rights guaranteed by Article 14,1 taken in conjunction with Article 8,2 of the European Convention on Human Rights (‘the Convention’) (E.B. v France, application No. 43546/02, Judgment of 22 January 2008, para. 1). The judgment, which finds that a consideration of the applicant’s sexual orientation by French adoption authorities was the basis for her differential treatment, and that such treatment constitutes a form of discrimination contrary to the Convention, has been seen as significant in a number of respects: as a pioneering ruling in the cause of gay and lesbian human rights (see, for example, Human Rights Watch Europe 2008); as advancing the legal recognition of non-heterosexual kinship relations (Hart 2009); as reaffirming the general liberal-egalitarian principle that no individual should be disadvantaged because of their ‘lifestyle’ (Letsas 2008); and as broadening the Court’s interpretation of the concept of ‘private and family life’ contained within Article 8 of the Convention in respect of sexual orientation (Johnson 2010).

I want to argue that the judgment should be viewed as significant in another key respect: that is, as an innovative legal consideration of, and challenge to, heteronormativity. Whilst the basis of the complaint in E.B. v France—of discrimination on the grounds of sexual orientation—is not uncommon in the Court’s case law,3 the judgment is altogether atypical. It extends beyond previous Strasbourg jurisprudence, ostensibly concerned with determining the scope of ‘gay rights’ in liberal, democratic societies, and offers a sustained critique of the heteronormative relations of contemporary European societies. Through a consideration of normative claims relating to the symbolic order of family life, and of the professional expertise that underwrites such claims, the Court’s published judgment provides a (rare) legal exposition of heteronormativity as an organizing principle of contemporary social life and, furthermore, how it underpins and reproduces inequalities. One outcome of the Court’s judgment is that it offers a new interpretation of the Convention through which to conceptualize, and redress, a range of social inequalities resulting from heteronormative practices. As I will argue, this marks an important shift towards recognizing the discrimination that is implicit to the heteronormative arrangements of contemporary European societies and, furthermore, acknowledges that such discrimination is contrary to Convention rights.

Heteronormativity Not Homophobia

E.B. marks a significant departure from the Court’s previous case law relating to discrimination, contrary to Article 14 taken in conjunction with Article 8, on the grounds of sexual orientation. In previous cases, the Court took an approach of adjudication consistent with its broader interpretation of the Convention: in considering allegations of differential treatment by public authorities, the Court judged whether such treatment was ‘objective and reasonable’ (‘Belgian Linguistics’ case (No. 2) A.6 (1968) 1 EHRR 252, para. 10) or constituted illegitimate and disproportionate discrimination. In order to reach its judgments in cases concerned with sexual orientation, the Court has relied upon evidence of the extent to which public authorities have focused explicit attention on an applicant’s homosexual orientation or practice. The Court sometimes found that evidence of such attention constituted discrimination contrary to the Convention—as, for example, in Salgueiro Da Silva Mouta v Portugal (1999-IX; 31 EHRR 47) where domestic authorities explicitly referred to the applicant’s homosexuality as ‘abnormal’ when refusing him custody of a child—or deemed it legitimate and proportionate within the margin of appreciation afforded to contracting states—as in Fretté v France (2002-I; 38 EHRR 21) where domestic authorities paid attention to a male homosexual’s ‘lifestyle’ when refusing him authorization to adopt a child. In determining whether differential treatment on the grounds of sexual orientation was based on ‘convincing and weighty’ reasons (Smith and Grady v the United Kingdom, ECHR 1999-VI, para. 89; Lustig-Prean and Beckett v the United Kingdom, 29 EHRR 548, para. 82; S.L. v Austria, ECHR 2003-I, para. 37), the foundation of the Court’s approach has been an appraisal of evidence of an explicit focus on an applicant’s homosexuality by a domestic authority.4

E.B. is a departure from this practice because, as the Court recognized in its judgment, the domestic authorities that refused the applicant’s authorization to adopt a child did not ‘expressly’ refer to her sexual orientation or to her ‘choice of lifestyle’ (E.B. v France, para. 71). The evidence in support of the applicant’s claim of discrimination presented to the Court, in the form of various assessments and reports written about her application by the French authorities, did not demonstrate the existence of any explicit focus on her homosexual identity or practice. Because of this, when a majority of ten judges in the Grand Chamber of the Court concluded that a consideration of the applicant’s homosexuality was the decisive reason on which the domestic authorities had rejected her application there was strong dissent among the seven other judges sitting in the case.5 Judge Costa, joined by three others, stated that the assertion that the applicant’s homosexual orientation was the decisive ground for refusing her application was ‘somewhat gratuitous’ (E.B. v France, Dissenting opinion of Judge Costa joined by Judges Türmen, Ugrekhelidze and Jočienė, para. 7). Judge Loucaides criticized the majority for making a ‘constant effort’ to interpret the decision of the domestic authorities as being based on a consideration of the applicant’s homosexuality when ‘nothing was said to that effect and the authorities repeatedly made it clear that their refusal of authorization was not made on the basis of a “position of principle regarding her choice of lifestyle” or “in view of the applicant’s sexual orientation”’ (E.B. v France, Dissenting opinion of Judge Loucaides).

Judge Loucaides’ use of the term ‘effort’ is revealing. The judgment reached by the majority did require effort because it demanded reconceptualizing the Court’s approach to understanding discrimination in respect of sexual orientation. Instead of focusing on the form of discrimination that arises from differential treatment based on an explicit focus on homosexuality (what is commonly referred to in social life as ‘homophobia’), the Court turned its attention to a form of discrimination that is implicit to the normative reproduction of heterosexuality. The effort of the majority can be seen in the concerted break it made with the Court’s existing jurisprudence in order to acknowledge that the French authorities discriminated against the applicant on the grounds of her sexual orientation by reproducing existing social relations characterized by their heteronormativity.

By heteronormativity I mean, what Berlant and Warner call, ‘the institutions, structures of understanding, and practical orientations that make heterosexuality seem not only coherent […] but also privileged’ (Berlant and Warner 1998, p. 548). I want to argue that the most important feature of E.B. is its engagement with the ‘privilege’ of heterosexuality and the challenge it makes to what Smart calls the ‘effortless superiority’ that heterosexuality commonly achieves in social life (Smart 1996, p. 173). As I will show, the judgment can be read within a tradition of critical and ‘queer’ thinking that has subjected the social normativity of heterosexuality to examination and considered how, to use Adrienne Rich’s term, it ‘flickers across and distorts our lives’ (Rich 1986, p. 64). The Court can be seen to reach its judgment by adopting the critical standpoint necessary to see beyond, what Ingraham’s terms, the ‘heterosexual imaginary’: that ‘way of thinking which conceals the operation of heterosexuality […] and closes off any critical analysis of heterosexuality as an organizing institution’ (Ingraham 1996, p. 169). In doing so, the Court can be seen to ‘interrupt the ways in which the heterosexual imaginary naturalizes heterosexuality and conceals its constructedness in the illusion of universality’ (Ingrahams 1996, p. 169).

My interpretation of the judgment is that it interrupts heteronormativity by substantially contesting many of the normative, enduring and naturalized ideas about sex and gender differences that are commonly invoked as a foundation for heterosexual sociality. It achieves this by challenging the social hegemony of the belief that gender and biological sex differences are ‘natural evidence’ of the necessity for reproducing heterosexual relations in society.6 In contesting normative and expert claims about sex and gender, the Court disrupts the performative process through which heterosexuality is continually essentialized and normalized (Butler 1990). The Court’s challenge, then, arises from the injunction it offers to the discursive repetition of a socially normative and heterosexist ontology that is founded on claims about the natural complementarity of male/female sex differences. Instead of confirming this ontology, the Court’s judgment exposes heterosexuality as a social, rather than a natural, construction. The judgment achieves this by illuminating how the reproduction of heteronormative sociality depends upon maintaining strict and coherent boundaries with homosexuality. In acknowledging the importance of this binary relationship with homosexuality, the judgment recognizes how the ‘policing’ of the borders of heteronormativity by public authorities produces forms of exclusion and discrimination for homosexuals.

It is not an exaggeration to argue that E.B. offers the potential for a new era of interpretations of the Convention by the Court in respect of sexual orientation. In advancing a critique of heteronormativity, E.B. breaks from all previous Strasbourg jurisprudence in relation to sexual orientation where the Court’s emphasis was on considering the scope of ‘gay rights’ within the existing social and legal environments of contracting states. Whilst the Court has been decisive in securing for gay men and lesbians, from Dudgeon v The United Kingdom (A 45 (1981); 4 EHRR 149) onwards, the piecemeal extension of certain rights, most notably in relation to the privacy provisions of Article 8 (see Grigolo 2003; Johnson 2010), it has not previously addressed the heteronormativity of the legal arrangements of European societies. The result of this, as Morgan argues, has been that

from a liberal, positivist point of view, we [gay men and lesbians] have had some success. We have made some gains in being included in the heteronormative system. But […] we have not been very successful at breaking down that system. We have not managed, in human rights law, to challenge the heteronormative assumptions upon which the system is based (Morgan 2001, p. 211).

Morgan’s observation echoes the more general complaint that ‘law supports the heteronormative discourses in our culture and our politics that elevate and protect heterosexual social arrangements even as they cause hardship to those living outside those boundaries’ (Barclay et al. 2009, p. 14; see also McGhee 2001). E.B. marks a decisive change from the tendency of law to reproduce heteronormative social relations and, instead, offers an interpretation of the Convention that challenges the heteronormative foundations of contemporary European societies. In providing a legal examination of, and challenge to, heteronormativity the Court can be seen to have produced, to use Rich’s term, the ‘shattering’ of a ‘great silence’ in its own jurisprudence (Rich 1986, p. 51).7

The Facts in E.B.: Norms, Normalization and Expertise

What makes E.B. so distinctive in Strasbourg jurisprudence, and so important for contemporary sexual politics, is the Court’s interpretation of the facts presented in the case. As I argued above, the central feature that differentiates E.B. in the Court’s case law is that, although the applicant claimed that her sexual orientation was decisive to the decision to refuse her application for authorization to adopt a child, the Court was presented with no evidence to show that any explicit reference was made to her homosexuality by the domestic authorities during their decision-making process. In this section I want to explore the facts presented to the Court and examine how the reasoning of the domestic authorities can be interpreted as evidence of heteronormative practice. It is only when the reasoning of the domestic authorities is understood as distinctly heteronormative that it becomes possible to understand how the majority upheld the applicant’s claim that, despite never making any explicit reference to homosexuality, a concern with her sexual orientation was decisive.

Ms. B. applied for authorization to adopt a child as a single person, as allowed by Article 343-1 of the French Civil Code.8 Following the submission of her application, various professionals from a number of different agencies assessed her suitability to adopt. Whilst the reports and submissions from those professionals do show occasional references to her sexual orientation that could be read as implicitly negative—such as the passing comment by a psychologist from the Children’s Welfare Service on the applicant’s ‘complicated personal background’ and her ‘unusual attitude towards men in that men are rejected’ (E.B. v France, para. 5)—at no point was the applicant’s sexual orientation explicitly identified as a ground for refusing her authorization to adopt a child. On the contrary, the Jura Social Services Department, who were responsible for processing the application, noted that on account of her ‘personality and her occupation [as a nursery school teacher], Ms. B. is a good listener, is broad-minded and cultured, and is emotionally receptive’ (E.B. v France, para. 3). The Social Services Department also appreciated the applicant’s ‘clear-sighted approach to analyzing problems and her child-rearing and emotional capacities’ (E.B. v France, para. 3).

When the President of the Department subsequently informed Ms. B. that her application had been refused, the reasons given made no mention of her sexual orientation. In a letter to the applicant, the President stated that ‘in examining any application for authorization to adopt I have to consider the child’s interests alone and ensure that all the relevant safeguards are in place’ and went on to give two reasons why the applicant could not satisfy and safeguard the best interests of a child (E.B. v France, para. 17). The first reason was that the applicant’s ‘plan to adopt reveals the lack of a paternal role model or referent capable of fostering the well-adjusted development of an adopted child’; the second reason concerned ‘the place that your partner would occupy in the child’s life [which] is not sufficiently clear: although she does not appear to oppose your plan, neither does she seem to be involved, which would make it difficult for the child to find its bearings’ (E.B. v France, para. 17). On the basis of these two grounds, the Department’s conclusion was that the applicant could not ensure that an adopted child would have a ‘sufficiently structured family framework in which to flourish’ (E.B. v France, para. 17).

The two reasons given to refuse Ms. B.’s application—the lack of ‘paternal role model or referent’ and the lack of clarity regarding the ‘place’ that her partner would ‘occupy in the child’s life’—can both be seen to express a heteronormative conception of ‘family life’. They are heteronormative in the sense that they assert that a ‘family framework’ that is ‘sufficiently structured’ to ensure the best interests of a child is essentially a family that is comprised of both male and female parental referents. The evidence presented to the Court shows that, throughout the decision-making process of the domestic authorities, these parental referents were imagined in relation to the heteronormative ideal of a heterosexual, long-term, domesticated ‘couple’.

For example, in respect of the first ground given to refuse the applicant authorization to adopt, heteronormative ideas of kinship and parenting were evident from the outset. The socio-education assistant and paediatric nurse, who first assessed the application, raised questions about the applicant’s ability to ‘play the role of mother and father’ in a child’s life or, alternatively, to provide a child with a ‘stable, reassuring and reliable […] father figure’ (E.B. v France, para. 10). They stated that, because the applicant was ‘unmarried’ and ‘cohabiting with a female partner’, that they had ‘not been able to assess her ability to provide a child with a family image revolving around a parental couple such as to afford safeguards for that child’s stable and well-adjusted development’ (E.B. v France, para. 10). In a subsequent assessment of the application, the psychologist assigned to the case noted that whilst Ms. B. had ‘many personal qualities’, which included being ‘enthusiastic and warm-hearted’ and being ‘very protective of others’, a significant question was raised by how ‘certain we can be that the child will find a stable and reliable paternal referent’ (E.B. v France, para. 11). The psychologist argued that ‘all the studies on parenthood show that a child needs both its parents’ and urged the Department ‘not to forget that children forge their identity with an image of both parents’ (E.B. v France, para. 11).

The theme of the child’s ‘identity’ was continued by another psychologist who, acting on behalf of the Children’s Welfare Service, argued that placing a child with the applicant would ‘expose the child to a certain number of risks relating to the construction of his or her personality’ (E.B. v France, para. 13). A representative for the Adoption Board from the Family Council concurred with the psychologist, stating that from ‘personal experience of life with a foster family I am now, with the benefit of hindsight, in a position to assess the importance of a mixed couple (man and woman) in providing a child with a home’ (E.B. v France, para. 14). He went on to argue that the ‘role of “adoptive mother” and “adoptive father” in the child’s day-to-day upbringing are complementary, but different [and] I therefore think it is necessary, in the interests of the child, for there to be a solid balance’ (E.B. v France, para. 15). The head of the Children’s Welfare Service agreed with these assessments, stating that there ‘does not appear to be room for a male referent who would actually be present in the child’s life’ and that in ‘these circumstances, there is a risk that the child would not find within this household the various family markers necessary to the development of his or her personality and well-being’ (E.B. v France, para. 16).9

These arguments are examples of how heteronormativity is reproduced through, as Fuss argues, claims about heterosexuality being ‘a practice governed by some internal necessity’ (Fuss 1991, p. 2). The claim of a need for ‘complementary’ parental referents, in the form of a female ‘mother’ and a male ‘father’, to ensure the production of a ‘well-developed’ child was presented by the domestic authorities as evidence for the necessity of reproducing heterosexual relationships. This evidence was presented by ‘experts’ as ‘fact’ and argued to derive from academic studies on parenting as well as the empirical observations of the experts themselves. Yet such evidence can also be seen as the ‘professionalization’ of socially commonplace ideas about heterosexuality as an essential, ahistorical, natural mode of social organization that is central to the existence of society (Johnson 2005). It is one instance of the way in which, as Carabine argues, professional expertise provides the vehicle through which ‘the ideal of heterosexuality is established as the set of sexual relations and behaviour by which all sexuality will be judged, heterosexual and non-heterosexual, as the “natural”, “normal” and acceptable forms of sexuality’ (Carabine 1996, p. 72).10

It is this social quality of heterosexuality—its ‘naturalness’—that allows heteronormative claims about its necessity in society to appear divorced from the temporal and partisan politics of sexuality in contemporary societies. This is evident in the defence advanced by the domestic authorities that their assertion of normative claims about the need for children to live in heterosexual families had no relation to any consideration of the applicant’s homosexual orientation. In seeking to ‘prove’ this, the domestic authorities argued that ‘any other heterosexual applicant whose immediate circle of family and friends did not include a member of the opposite sex would have had their application refused’ (E.B. v France, para. 38). The fact that heterosexual applicants may be refused authorization to adopt for failing to approximate heteronormative ideals of parenting and kinship does not, in itself, demonstrate the absence of heteronormativity; on the contrary, it could be argued to be evidence of the existence and endurance of such norms. But the defence does show how it is possible to argue that ensuring ‘normal’ relations bears no decisive relationship with a concern for the sexual and intimate relationships of the applicants who are being assessed and, therefore, does not constitute a form of direct or indirect discrimination on these grounds.

The second mode of reasoning adopted by the domestic authorities, which concerned the place of Ms. B.’s partner in a child’s life, can also be understood to reflect heteronormative assumptions. In an early assessment of the application the socio-educational assistant and the paediatric nurse noted that ‘Ms. B. and Ms. R. [her partner] do not regard themselves as a couple, and Ms. R., although concerned by her partner’s application to adopt a child, does not feel committed by it’ (E.B. v France, para. 10). Concern over the status of the relationship between the two women and the fact that they did not regard themselves as a ‘couple’ continued throughout the assessment of the application. The head of the Children’s Welfare Service, for example, recommended that the application be refused because the applicant ‘lives with a female partner who does not appear to be party to the plan. The role this partner would play in the adopted child’s life is not clearly defined’ (E.B. v France, para. 16). Given that the applicant was applying as a single person for authorization to adopt a child, and that French law allows single person adoption, the importance placed by the domestic authorities on the ‘role’ of Ms. R. is striking.

One way of understanding this focus on the applicant’s relationship with her partner as heteronormative is to consider the nature of the concerns of the domestic authorities. There was no suggestion from those who assessed the application that Ms. B.’s partner posed any kind of threat or danger to the welfare of a child. Nor was there an anxiety about her skills as a parent. Rather, the concern of the domestic authorities regarded the ‘role’ Ms. R. would play in supporting the development of a child’s personality. The psychologist from the Children’s Welfare Service was concerned that the relationship between the two women would give rise to an ‘unclear or even an unspoken situation involving ambiguity’ that could be detrimental to a child because it would ‘make it difficult for the child to find its bearings’. This notion of ‘bearings’ can be understood to reiterate a normative symbolic ‘map’ through which children are imagined to navigate a route to a well-developed personality. This map is imagined in relation to hegemonic ideas about the intimate relationship of a monogamous and domesticated ‘couple’ who, together, enable a child to achieve its full (and normal) development. Those who form intimate and sexual relationships that depart from the standard heteronormative ‘scripts’ of romantic convention (Jackson 1999, p. 106) become viewed as people engaged in ‘border intimacies’ (Berlant and Warner 1998, p. 15) that starve children of the vital symbolic diet central to their psychosocial development (Hicks 2005). Against this normative construction, Ms. B.’s relationship with her partner can be seen to have failed to approximate a key ideal of parenting and kinship.

The facts presented in E.B. show that the Court was required to determine whether the domestic authorities, by asserting heteronormative principles in respect of family life, made the sexual orientation of the applicant decisive to the refusal of her application. Before going on to examine how the Court considered this issue, it is worth briefly describing the domestic legal process that preceded it. Following her refusal by the Social Services Department, Ms. B. applied to the Besançon Administrative Court to have the decision set aside. The Administrative Court did set aside the decision, ruling that the ‘reasons cited [for refusing the application] are not in themselves capable of justifying a refusal to grant authorization to adopt’ and that the evidence presented to the Department showed that the applicant ‘would provide an adopted child with a suitable home’ (E.B. v France, para. 22). The Department appealed this decision and the Nancy Administrative Court of Appeal set aside the judgement from the lower court. It ruled that ‘the absence of “identification markers” due to the lack of a paternal role model or referent and the ambivalence of the commitment of each member of the household to the adoptive child’ (E.B. v France, para. 25) were sufficient grounds for refusing the application. In elaborating its reasoning, the Court of Appeal made a significant reference to the applicant’s ‘lifestyle’:

It can be seen from the documents in the file, and particularly the evidence gathered during the examination of Ms. B.’s application, that having regard to the latter’s lifestyle and despite her undoubted personal qualities and aptitude for bringing up children, she did not provide the requisite safeguards – from a family, child-rearing and psychological perspective – for adopting a child (E.B. v France, para.24).

The Court of Appeal made explicit their view that any consideration of the applicant’s homosexual orientation (in terms of both her identity and practice) had played no part in the decision to refuse authorization. On the contrary, whilst the decision made in relation to her capacity to provide the ‘requisite safeguards’ for adopting a child was taken with regard for her ‘lifestyle’ (being unmarried and co-habiting with a female partner), this did not constitute a position of principle on which the application was rejected. Rather, the Court of Appeal stated that the circumstances of the applicant’s life were assessed in respect of an objective set of criteria relating to the best interests of the child. In the final domestic ruling, the Conseil d’Etat confirmed this view and stated that, whilst the applicant’s homosexual ‘relationship had to be taken into consideration in the needs and interests of an adopted child’, no decision had been based on ‘a position of principle in view of the applicant’s sexual orientation’ (E.B. v France, para. 25). At the point that the case arrived in Strasbourg, the view of the domestic courts was that the ‘principles’ on which the application had been decided did not relate to Ms. B.’s sexual orientation but purely to the welfare of the child.

‘Seeing’ Discrimination: How the Court Challenged Heteronormativity

That Ms. B. was regarded as incapable of providing a normative family structure, and that this differentiated her from other successful applicants for authorization to adopt a child, was not disputed by the domestic authorities who refused her application. What the domestic authorities did contest was Ms. B.’s claim that their decision to refuse her application was based on an assessment of her sexual orientation. The central question before the Court, therefore, was not simply whether heteronormative expressions of ‘family life’ disadvantaged the applicant during the decision-making process because of her inability to approximate this normative ideal.11 Rather, the question was whether the applicant’s sexual orientation was the decisive ground on which the domestic authorities judged her incapable of approximating this normative ideal.

Given the facts of the case, it is surprising that the Court answered this question in the way that it did and upheld the applicant’s complaint that her sexual orientation was the decisive reason for refusing her application. It is even more surprising that the Court ruled that this constituted a disproportionate and illegitimate form of discrimination under Article 14, taken in conjunction with Article 8, of the Convention. It is surprising, not least, because of the Court’s previous judgment in Fretté v France (2002-I; 38 EHRR 21) six years earlier. In Fretté, a similar facts case to E.B., the majority found that differential treatment on the grounds of sexual orientation was a legitimate and proportionate practice by a national authority when considering the adoption of a child.12 Whilst the applicant in Fretté presented explicit evidence that a consideration of his homosexual ‘lifestyle’ by domestic authorities had been the basis for refusing his application for authorization to adopt a child, the Court found that:

Even if the decision to refuse authorisation had been based exclusively or chiefly on the applicant’s sexual orientation, there would be no discrimination against him [because the] criteria applied for that purpose had been both objective and reasonable. The difference in treatment stemmed from the doubts that prevailed, in view of what was currently known about the subject, about the development of a child brought up by a homosexual and deprived of a dual maternal and paternal role model (Fretté v France, para.36).

It is striking, therefore, that six years after Fretté, and in a case that some (including the dissenting judges) regarded as presenting less convincing evidence to support a claim of discrimination on the grounds of sexual orientation, that a majority in the Court would find in favour of the applicant.

Before considering how this shift came about—which, I argue, hinges on a reconceptualization by the majority of the Court’s ‘theoretical’ approach to understanding discrimination in respect of sexual orientation—it is important to contextualize the judgment in E.B. within the evolving landscape of the Court’s interpretation of the Convention as a ‘living instrument’.13 One of the most important aspects of this evolution has been the recognition that complaints from sexual minorities concerning discrimination in the area of adoption law are admissible in the Court. Whilst Article 14 of the Convention protects individuals from arbitrary discrimination, it has no independent existence outside of the rights and freedoms specified by the other Articles of the Convention. Since the Convention does not guarantee any right to adopt a child, it has been necessary for homosexual applicants to complain that discrimination in the area of adoption falls within the scope of Article 8 of the Convention (which guarantees the right to respect for ‘private and family life’). The Court’s recognition that discrimination in relation to adoption on the grounds of sexual orientation falls within the ambit of Article 8 was central to allowing Ms. B. to argue successfully that her complaint related to ‘private life’ (because it concerned the creation of a new relationship with another individual).14 Ruling complaints admissible on the grounds of discrimination in adoption reflects the Court’s broader evolution of the concept of ‘private life’ to encompass the right to establish and develop relationships with other human beings (Niemietz v Germany A 251-B (1992); 16 EHRR 97, para. 29), the right to personal development (Bensaid v The United Kingdom (2001) ECHR 82), and the right to self-determination (Pretty v The United Kingdom (2002) ECHR 427).15

This evolution in the interpretation of Article 8 was significant in deeming Fretté, the first case of this kind, admissible but it did not result in the Court recognizing the legitimacy of the applicant’s complaint. Doty (2009) suggests that two key developments, between Fretté and E.B., may have influenced the significant shift in the opinion of the Court. The first is the entry into force of Protocol 12 of the Convention which contains a general prohibition of discrimination. Article 1 of Protocol 12 states that ‘the enjoyment of any right set forth by law shall be secured without discrimination’. The effect of this is that protection from discrimination is extended from Convention rights to any law in a contracting state that has acceded to the Protocol. Whilst France has not acceded to Protocol 12, and it was not invoked in E.B., Doty (2009) argues that its existence demonstrates a growing consensus across contracting states that all discrimination in the procedural operation of law is impermissible and that this, in turn, influenced the Court’s decision. A second development that may have influenced the Court’s decision is the revision of the European Convention on the Adoption of Children by the Council of Europe which, although still in draft form at the point of the judgment, contained specific provision to extend the scope of the convention to same-sex couples.16 Doty argues that ‘though the court does not expressly rely on it at any point in its judgment […] the draft Convention illustrates a change in European opino juris that gays and lesbians are suitable to adopt children’ (2009, p. 135).

These factors may have influenced the Court’s decision to find the difference in treatment complained of in E.B. to be illegitimate and disproportionate discrimination under the Convention. Yet they do not explain, given the facts of the case, how the Court came to ‘see’ the discrimination. E.B. shows none of the explicit discrimination that characterized earlier similar facts cases in the Court—as, for instance, in Salgueiro Da Silva Mouta v Portugal where, in denying a male homosexual applicant custody of his own child, the Lisbon Court of Appeal referred to his homosexual orientation as ‘abnormal’ and stated that ‘children should not grow up in the shadow of abnormal situations’ (1999-IX; 31 EHRR 47, para. 14). It was the absence of such explicit discrimination that produced such a high level of dissent among the sitting judges, many of who could not identify evidence of the discrimination complained of by the applicant. Even those judges who argued that the Convention should protect homosexuals from arbitrary discrimination in adoption law could not agree that the applicant in E.B. had a legitimate claim. For instance, Judge Costa, joined by Judges Türmen, Ugrekhelidze and Jočienė, stated that:

In so far as the Court has adopted a position of principle I can, I think, accept it, but I am not at all sure that in this specific case the inference attributed to the respondent State has proved to be contrary to that position or incompatible with the Convention provisions (E.B. v France, Dissenting opinion of Judge Costa joined by Judges Türmen, Ugrekhelidze and Jočienė, para.2).

Judge Costa and his colleagues went on to state that they were ‘convinced that the message sent by our Court to the State Parties is clear: a person seeking to adopt cannot be prevented from doing so merely on the grounds of his or her homosexuality’ (para. 3). However, they dissented from the majority judgment because they argued that if ‘we leave the theoretical domain, and address the specific case of the applicant’ (para. 4) the claim that homosexuality was the decisive reason for refusing her application is ‘gratuitous’ (para. 7).

Judge Costa’s separation of a ‘theoretical’ domain of reasoning, as distinct from an evaluation of the specific evidential facts presented in E.B., is revealing. It describes the Court’s hitherto approach to adjudicating complaints from sexual minorities where evidence of an explicit concern with homosexuality by public authorities was required to ‘trigger’ recognition of discrimination under Article 14. It shows that the ‘theoretical’ construction of rights was built around an understanding of discrimination as the outcome of an explicit focus on an individual’s homosexuality. What makes the judgment in E.B. so important, therefore, is that the majority recognized that, despite the lack of any specific reference to the applicant’s homosexuality by the domestic authorities, the facts of the case did support her claim of discrimination. This is only possible because the majority tacitly reconceptualized its ‘theoretical’ understanding of discrimination in order to see heteronormative ideas and practices as themselves evidence of discrimination.

The majority’s reconceptualized understanding is demonstrated by its analysis of the facts. This analysis began with the Court considering whether the two grounds given by the domestic authorities for refusing the application were decisively based on a consideration of the applicant’s sexual orientation. The majority argued that the applicant’s sexual orientation was decisive and that a consideration of her homosexuality had ‘contaminated’ the decision-making process of the domestic authorities. It was this conclusion that produced the high level of dissent among the other sitting judges. Because the domestic authorities had rarely mentioned the applicant’s homosexuality, and since ‘it was actually the applicant herself who declared her homosexuality’ (E.B. v France, Dissenting opinion of Judge Mularoni), all of the dissenting judges argued that it was impossible to ‘see’ such contamination. Judge Zupančič argued that he was unable to ‘subscribe to the osmotic contamination theory advanced by the majority’ after considering the ‘facts’ (E.B. v France, Dissenting opinion of Judge Zupančič). Yet, the majority’s ability to see the applicant’s homosexuality as decisive to the decision-making of the domestic authorities within the facts was enabled by their recognition of how a concern with homosexuality is implicit to heteronormative reasoning. They argued that decision-making is ‘contaminated’ with a concern to discriminate against homosexuals not simply when homosexuality is ‘singled out’ and made explicit but when heteronormative constructions are maintained.

This conclusion by the Court, that in reiterating heteronormative values the domestic authorities were implicitly concerned with the applicant’s homosexuality, strongly resonates with the view advanced by many ‘queer’ writers that heteronormativity always depends upon, and functions in relation to, homosexuality (for example: Halperin 1995; Sedgwick 1990; Warner 1993). This view has been foundational to the critique of those ‘expert’ discourses prevalent in E.B., such as psychology and psychoanalysis, which are so often called upon as the ‘official’ discourses of heterosexuality (Wittig 1979). When such discourses are marshalled to justify the necessity of heterosexual relations they do so by ‘marking out’ its normative borders and, to achieve this, invariably depend upon that which is imagined to be ‘outside’ of those borders: homosexuality. As Fuss (1991) argues, claims about the coherence of heterosexuality, and of its status as a natural ‘fact of life’, rely upon that which is continually repudiated as antithetical to its own nature. ‘The homo in relation to the hetero’, Fuss argues, ‘operates as an indispensable interior exclusion—an outside which is inside interiority making the articulation of the latter possible, a transgression of the border which is necessary to constitute the border as such’ (1991, p. 3). When Judge Loucaides, in his dissenting opinion in E.B., described homosexuals as ‘persons with some peculiarity’ to justify their differential treatment, he demonstrated how the naming of this ‘perculiarness’ functions as an imagined border with that which comes to be regarded as ‘normal’ (E.B. v France, Dissenting opinion of Judge Loucaides). By the same logic, when the ‘normal’ is named it is done so in relation to a border, on the other side of which the abnormal ‘other’ is implicitly imagined. Claims about heteronormative family structures can be seen to demonstrate not an absence of a concern with homosexuality but, rather, how homosexuality is central to establishing, and policing, the ontological boundaries of heterosexuality.

The judgment of the majority was not that the domestic authorities had ‘hidden’ their desire to reject the applicant on the basis of her homosexuality by obscuring their ‘homophobia’ within other grounds. Although the Court acknowledged that the ground relating to the lack of paternal referent ‘might […] have led to an arbitrary refusal and have served as a pretext for rejecting the applicant’s application on grounds of her homosexuality’, the judgment extends beyond a consideration of the likelihood of ‘pretext’ (E.B. v France, para. 73. My emphasis). Rather, the Court regarded the discrimination experienced by the applicant to arise directly from ‘the manner in which certain opinions were expressed’ by the domestic authorities about her ability to provide a child with a family that they regarded as ‘sufficiently structured’. This ‘manner’ of expression, the Court concluded, was ‘indeed revealing in that the applicant’s homosexuality was a determining factor’ to the decision reached by the domestic authorities (E.B. v France, para. 85. my emphasis).

Central to the Court’s reasoning, therefore, was the view that the various statements made by the domestic authorities in relation to parenting and families—for instance, that ‘all the studies on parenthood show that a child needs both its parents’ and that an adoptive family should be composed ‘of a mixed couple (man and woman)’ (E.B. v France, para. 86)—were inherently and implicitly concerned with the issue of homosexuality. The Court made it clear that the ‘systematic reference to the lack of a “paternal referent”’, the ‘importance attached to it by the domestic authorities’, and the ‘excessive reference’ to it in evaluating the applicant’s application (E.B. v France, para. 87), lead to ‘the inescapable conclusion that her sexual orientation was consistently at the centre of deliberations in her regard and omnipresent at every stage of the administrative and judicial proceedings’ (E.B. v France, para. 88). The conclusion of the majority was, therefore, that the applicant’s ‘homosexuality was, if not explicit, at least implicit’ to the reasoning of the domestic authorities (E.B. v France, para. 89).

In order for the Court to conclude that the ‘manner’ of reasoning engaged in by the domestic authorities revealed the applicant’s homosexuality to be a decisive element of their deliberations required it to recognize that the normative construction of heterosexuality, and the heteronormative discourses that support it, functions in relation to implicit concerns with non-heterosexual sexualities. This required an acknowledgement of the ways in which homosexuality, despite being normatively imagined as peripheral to the ‘core’ concerns of heterosexuality, is always at its centre providing heterosexuality with the means to construct and regulate its own boundaries. By recognizing processes that support heteronormativity to be implicitly concerned with homosexuality, the Court offers a way of understanding discrimination of homosexuals to be at the root of the reiteration of heterosexual norms. This is important because it means that the court now recognizes that discrimination in relation to sexual orientation occurs not only when explicit reference is made to homosexuality but, rather, where individuals are deemed to ‘fail’ when they are measured in relation to heteronormative ideals. Where ‘systematic’ and ‘excessive’ importance is placed upon such ideals, resulting discrimination suffered by homosexuals can now be identified as illegitimate and disproportionate under Article 14 of the Convention.

An atypical Judgment

The Court’s conclusion that the applicant’s homosexuality was ‘omnipresent’ in the reasoning of the domestic authorities demonstrates a new willingness to recognize the symbiotic relationship between the reproduction of heteronormativity and the discrimination of homosexuals. The metaphor of ‘contamination’ adopted by the Court can be seen to acknowledge the ways in which social processes designed to ensure heterosexual privilege function with an inherent concern for homosexuality. Even in the absence of an explicit focus on homosexuality by public authorities, the Court recognizes that heteronormative processes are not ‘pure’ or devoid of ‘homophobia’ but, rather, infused with a concern for homosexuality and, crucially, an implicit desire to maintain borders with it. Yet the judgment remains atypical within the Court’s case law. In subsequent cases concerning sexual orientation, the Court has reverted to its practice of considering discrimination contrary to Article 14, taken in conjunction with Article 8, by examining evidence of explicit homophobia.

For instance, in Kozak v Poland (Application no. 13102/02, Judgment of 2 March 2010) the Court upheld the complaint of an applicant who alleged that he had been discriminated against on the grounds of his homosexual orientation because he was denied the right to succeed to a tenancy after the death of his male partner. The applicant provided evidence to the Court that showed that domestic Polish courts had made explicit reference to his homosexuality to justify differential treatment of him by housing authorities. This took the form of the domestic court’s consideration of whether the term ‘de facto martial cohabitation’ in the Lease of Dwellings and Housing Allowances Act 1994 covered those living in homosexual relationships. The Szczecin District Court ruled that the scope of the provision did not encompass homosexual relationships, but only relationships formed by those of different sexes, and this view was subsequently upheld by the Szczecin Regional Court. The Court’s opinion was that these ‘conclusions clearly show that the Regional Court considered that the principal issue material for the ruling related to the applicant’s sexual orientation’ and that it was therefore ‘the homosexual nature of that relationship which per se excluded him from succession’ (Kozak v Poland, para. 97).

Similarly, in J.M. v The United Kingdom (Application no. 37060/06, Judgment of 28 September 2010) the Court upheld the complaint of an applicant who claimed that she had suffered discrimination on the basis of her sexual orientation during an assessment by authorities of her financial liability under the regulations on child support. The applicant, a mother of two children who is divorced from the children’s biological father and who lives with her female partner in a ‘close, loving and monogamous relationship characterized by long-term sexual intimacy’ (J.M. v The United Kingdom, para. 5), argued that domestic authorities in the United Kingdom had failed to recognize her homosexual partnership when calculating the level of maintenance she was required to pay her ex-husband, with whom the children resided. Whilst the applicant and her partner own the house in which they live, hold a joint mortgage, and have a joint bank account, the authorities calculated maintenance payments on the basis of her being a single person. The United Kingdom Government claimed that at the time the applicant’s case was assessed (prior to the introduction of The Civil Partnership Act 2004, which now provides legal recognition for same-sex partners) homosexual and heterosexual relationships were not analogous for the purposes of assessing family situations in respect of child maintenance—a view rejected by an Appeals Tribunal, the Child Support Commissioner, and the Court of Appeal, but upheld by the House of Lords Appellate Committee. The applicant argued that domestic authorities made her homosexual partnership the explicit grounds for discriminating against her by repeatedly stating that it constituted a domestic situation that was not analogous to that of an absent parent who had formed a new relationship with a person of the opposite sex. The Court upheld this view, finding that ‘the only point of difference’ between the applicant’s relationship and a heterosexual couple ‘derives from sexual orientation’ and, in treating the applicant differently because of this, the domestic authorities had contravened her rights under Article 14 taken in conjunction with Article 8.

In J.M., as in Kozak, the Court returned to its approach (long established in its jurisprudence) of focusing on evidence of an explicit reference to the applicants’ homosexual orientation by domestic authorities to justify differential treatment and, in considering such treatment to be without convincing and weighty reasons, found that it was incompatible with the standards of the Convention. As such, the critical focus of the Court in these cases was on the explicit homophobia of domestic authorities rather than, as in E.B., on the reproduction of heteronormativity. Whilst this is understandable in J.M. and Kozak, given that the applicants themselves drew attention to explicit references by domestic authorities to their sexual orientation, the Court has recently considered an application (Schalk and Kopf v Austria, Application no. 30141/04, Judgment of 24 June 2010) that made a direct complaint against discrimination created by heteronormative practices and, in its judgment, failed to apply the principles established in E.B.

Schalk originated in 2002 when the Vienna Municipal Office refused a same-sex couple the right to contract civil marriage under the Civil Code 1812 that states that marriage can only be contracted by persons of the opposite sex. The applicants lodged an unsuccessful appeal with the Vienna Regional Governor who informed them that Austrian law was consistent with Article 12 of the Convention, which provides that ‘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’. In a subsequent unsuccessful appeal in the Constitutional Court, the couple contended that marriage had evolved since the enactment of both the Civil Code and Article 12 and that, in light of this social change, the law should be amended.

The couple made an application to the Court on two grounds: first, they contended that Article 12 should be read in light of present day conditions to acknowledge the existence and importance of same-sex partnerships; second, they argued that exclusion from marriage constituted a form of discrimination contrary to Article 14 taken in conjunction with Article 8. By the time the Court heard the case, Austria had enacted The Registered Partnership Act which, entering into force in January 2010, enables ‘two persons of the same sex’ to become ‘registered partners’ and ‘thereby commit themselves to a lasting relationship with mutual rights and obligations’. There are a number of differences between marriage and registered partnership with the most significant involving parental rights: registered partners, unlike married couples, cannot adopt a child, cannot adopt a step-child, and have no access to state regulated artificial insemination. On the basis of these recognized differences, the Court refused an application from the Austrian Government to have the case struck from the Court’s list in light of the enactment of The Registered Partners Act.

In contrast to E.B., the Court’s consideration of the applicants’ complaint lacks any critical engagement with heteronormativity. This is made most clear by the Court’s consideration and rejection of the applicants’ claim that, since the Convention is a ‘living instrument’ (Tyrer v United Kingdom, 1978, para. 31), Article 12 should be read in light of present day conditions. The Court noted that, in light of changes to Article 9 of the Charter of Fundamental Rights of the European Union, that has deliberately omitted the reference to men and women in its provision on marriage, ‘it would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex’. However, the Court gave greater weight to the ‘deep-rooted social and cultural connotations’ of heterosexual marriage and, in light of these, noted that it ‘must not rush to substitute’ the legal provisions of ‘national authorities, who are best placed to assess and respond to the needs of society’ (Schalk and Kopf v Austria, para. 62).

The Court noted that the ‘deep rooted’ nature of heteronormative marriage was expressed in the wording of Article 12 through its specific reference to ‘men and women’. The Court stated that, in contrast to all of the other substantive Articles of the Convention that grant rights to ‘everyone’, this specification must be ‘regarded as deliberate’ (Schalk and Kopf v Austria, para. 55). The drafters of the Convention were, the Court argued, reiterating a view of marriage that was ‘clearly understood in the traditional sense of being a union between partners of different sex’ (Schalk and Kopf v Austria, para. 55) and, whilst the ‘institution of marriage has undergone major social changes since the adoption of the Convention’ (Schalk and Kopf v Austria, para. 58), the majority of contracting states still adopt these ‘traditional’ arrangements in their domestic law (only 6 of 47 allow same-sex marriage). As such, the Court adopted a textual interpretation of Article 12, combined with an assessment of European consensus, in order to reiterate heterosexist norms: it was not possible to imagine, the Court stated, a right for those of the same biological sex to marry to ‘flow from an interpretation of the fundamental right as laid down by the Contracting States in the Convention in 1950’ (Schalk and Kopf v Austria, para. 53).

In relation to Article 14, taken in conjunction with Article 8, the applicants complained that The Registered Partnership Act maintains differences between heterosexuals and non-heterosexuals and that no convincing or weighty reasons had been provided by the Austrian state to support this difference in treatment. Whilst the Court acknowledged that same-sex and different-sex couples are in a relevantly similar situation, in respect of their need for legal recognition and protection of their relationships, it felt unable to extend the protection of Article 14 to the applicants. A key aspect of the Court’s reasoning in respect of Article 14 was the importance it accorded to the protection of heterosexual marriage by Article 12. Having found that ‘Article 12 does not impose an obligation on Contracting States to grant same-sex couples access to marriage’, the Court concluded that ‘Article 14 taken in conjunction with Article 8, a provision of more general purpose and scope, cannot be interpreted as imposing such an obligation either’ (Schalk and Kopf v Austria, para. 101). Noting the ‘substantial differences’ experienced by same-sex couples who remain excluded from civil marriage, the Court held that maintaining such differences ‘corresponds on the whole to the trend in other member States’ and that, as such, ‘the Court does not see any indication that the respondent State exceeded its margin of appreciation’ (Schalk and Kopf v Austria, para. 109). In stating this, the Court upheld the legal arrangements that ensure the continuation of the superior cultural and social status of heterosexual marriage. Lacking the critical analysis of ‘traditional’ heteronormative practices adopted in E.B., the Court can be seen to have failed to apply the principle that where ‘systematic’ and ‘excessive’ importance is placed upon maintaining the exclusivity of heterosexual practices, any resulting discrimination suffered by homosexuals is illegitimate and disproportionate under Article 14 of the Convention.

Conclusions: The Impact of E.B.?

Given the atypical nature of the conceptual and analytical foundations of the judgment in E.B. it may be tempting to see it as something of an ‘outlier’ in the Court’s jurisprudence. Those who do not acknowledge the Court’s argument—that ‘systematic’ and ‘excessive’ attempts to maintain heteronormative practices rely on forms of ‘boundary work’ that discriminate against non-heterosexuals—will remain unconvinced by this ‘way of thinking’ (Ingrahams 1996, p. 169). Whilst they may support non-discrimination in adoption (and other) processes in principle, they will argue that E.B. lacks evidence of discrimination to support the applicant’s claim. For example, one recent commentator described the judgment as ‘at best, tenuous’ and argued that ‘the decision does not deserve any prizes for internal consistency, critical analysis, convincing argumentation or unanimity of decision’ (Curry-Sumner 2009, no page number). Concurring with the opinion of the dissenting judges, this criticism rests on the view that the facts of the case did not adequately demonstrate that the applicant’s homosexuality was the decisive ground on which the domestic authorities had discriminated against her. Those arguing from this standpoint will not acknowledge that the reproduction of heteronormativity, far from representing the continuation of a ‘natural’ order, constitutes the reproduction of a political and social system that ensures the privilege of some at the expense of others and, furthermore, that keeping those others excluded is decisive to its existence.

Yet the central, and wide-reaching, implication of the judgment is that it does give legal recognition to forms of ‘hidden’ discrimination that have long been experienced by non-heterosexuals in European societies. It is the form of discrimination that results from the mundane reproduction of heterosexual privilege that entails the implicit abjection of homosexuality. Those, such as Hart (2009), who welcome E.B. as a challenge to the symbolic order of kinship in contemporary societies and the epistemic constructions those who underpin it, may understand the importance of the judgment to lie in its support for same-sex families. Whilst the judgment does not focus on the issue of same-sex adoption per se, there is no doubt that it challenges the heteronormative structures of kinship that are imagined to be essential for the social, psychological and moral development of a child.17 But it would be a mistake to reduce the judgment to being concerned only with the legal recognition of family formations by non-heterosexuals. The judgment is better understood as a broader critique of heteronormative relations and the discrimination that is inherent to them.

Hart argues that the judgment in E.B. is a ‘logical outcome of post-Second World War equality and human rights rhetoric’ (2009, p. 557). However, given its atypical nature in the Court’s jurisprudence, the judgment should not be seen as a reflection of, or evidence for, a more general social change that has impacted upon, and challenged, the immutability of heteronormativity. Rather, the facts of the case demonstrate the endurance of hegemonic heteronormative relations in European societies (societies which have adopted certain ‘gay rights’ in domestic law) and how such relations continue to work to exclude non-heterosexuals. Far from reflecting a broader social change, the judgment represents a distinctive and forward-thinking legal consideration of the heteronormative practices that are central to the administration of contemporary societies. What makes E.B. so important, therefore, is not simply that it upholds the demands of homosexuals to be recognized as people capable of offering a symbolic or material form of kinship and family life suitable to child rearing. Rather, its importance lies in its repudiation of the central mechanism through which non-heterosexuals are excluded from participation in aspects of social and civil life. The judgment responds to the heteronormative claim that heterosexuality is ‘the elemental form of human association, […], the very model of inter-gender relations, […] the invisible basis of all community, and […] the means of reproduction without which society wouldn’t exist’ (Warner 1993, p. xxi). The judgment says that this is not so.

That E.B. remains atypical in the Court’s jurisprudence does not diminish its importance. The principles it establishes provide individuals with an important platform on which to complain whenever public authorities in contracting states use heteronormative grounds for continuing practices that discriminate against non-heterosexuals. This affords a new legal basis from which not simply to demand or normalize gay and lesbian rights in contemporary Europe, but to interrupt the repetition of heteronormative claims, the expertise that underpins them, and the ‘truths’ that they seek to establish. It offers nothing short of a way to challenge the supremacy of heterosexuality and, as such, is a distinctive advance in the Court’s approach to matters of sexual orientation. Whilst the principles of the judgment have not subsequently found re-expression within the Court’s jurisprudence, this should not be regarded as a static situation. An important aspect of the ‘living instrument’ doctrine of the Court is that it encourages a ‘dynamic and evolutive’ interpretation of the Convention and as the Court’s case law shows—certainly in respect of sexual orientation—this is far from a linear process (Johnson 2010). On the contrary, the Court very often establishes principles in one case that then become ignored or rejected across subsequent cases. An example of this is the evolution of the Court’s approach to the question of marriage in respect of Article 12: in Cossey v United Kingdom in 1990 (13 EHRR 622, para. 46) the Court excluded transsexuals from the right to marry by establishing the principle that ‘the attachment to the traditional concept of marriage which underpins Article 12 provide[s] sufficient reason for the continued adoption […] of biological criteria for determining a person’s sex for the purposes of marriage’; in Goodwin v United Kingdom in 2002 (35 EHRR 18, para. 100) the Court overturned that principle and found that ‘a test of congruent biological factors’ cannot be used to deny transsexuals a right to marry under Article 12; and in Schalk in 2010 the Court returned to the principle of ‘biological criteria’ to exclude a different class of persons from the protection of Article 12. The Court’s jurisprudence lacks a teleological approach, but its ‘creativity’ (Mowbray 2005) almost certainly ensures that it will utilize, and acknowledge, the principles established in E.B. in future considerations.18

Whilst E.B. provides a legal platform to challenge heteronormativity within the Court, its more significant effect may be its contribution to the wider cultural construction of sexuality in contemporary European societies.19 Whilst the Court continues to interpret the Convention ‘in the light of present-day conditions’, its jurisprudence must also be seen as actively engaged in fashioning the landscape of ‘present-day conditions’ in Europe. Because the Convention applies to such radically different social and cultural contexts, and covers in excess of 800 million people, it must be regarded as one of the most important mechanisms through which normative ideas about ‘present-day conditions’ are both formulated and applied. If we take sexuality, as Foucault does, to mean ‘the name that can be given to a historical construct’—a construct that is brought into being by ‘a great surface network in which the stimulation of bodies, the intensification of pleasures, the incitement to discourse, the formation of special knowledges, the strengthening of controls and resistances, are linked to one another’ (1979, pp. 105–106)—then we can regard the Court’s jurisprudence as having a significant effect upon the social construction of sexuality. It can be seen as an important aspect of the ‘great surface network’ through which sexuality is socially produced, a key site at which the ‘formation of special knowledges’ about sexuality are interpreted and reproduced, and a vital nexus at which ‘controls and resistances’ around sexuality are negotiated.

The Court’s long-standing role in contributing to the discursive construction of sexuality makes it one of the most important sites at which sexuality is ‘made’.20 If we see a judgment by the Court as ‘performative’—that is, ‘not as a singular or deliberate “act”, but, rather as the reiterative and citational practice by which discourse produces the effects that it names’ (Butler 1993, p. 2)—then its jurisprudence can be seen as an important site at which discourse becomes transformed into ontological effects. What is crucial is that the Court is a site at which normative discourse on sexuality can be performatively reiterated in ways that produce non-normative effects. In E.B. the Court can be seen to appropriate normative discourse about sexual orientation and performatively reiterate it in non-conventional ways to challenge heteronormativity. An important result of this is that the judgment offers a new discursive resource through which to resist a range of heteronormative practices in society. It does so by legitimatizing a critical (queer) ‘way of thinking’ about all those areas of social life—in the exclusion from marriage, in the curtailment of public assembly, in the limitation of freedom of expression, in the debarment from adoption—where non-heterosexuals face discrimination in contemporary Europe because they are understood to deviate from that which is deemed to be ‘normal’. As such, the Court provides a way to challenge the cultural discourses that deny, negate, and suffocate ‘queer lives’ (Butler 2004). It does so by creating ‘conditions of intelligibility’ (Butler 1997, p. 134) in which heteronormativity can be made visible as a social and political process and provides non-heterosexuals with a ‘way of speaking’ about its discriminatory effects. As Loizidou argues, ‘[w]hen norms do not become the law […] then we can resist the cultural norms that bring us into being [but] when the law and norms become one then the possibility for survival as humans becomes delimited’ (2008, p. 155. Emphasis in original). The Court’s critique of heteronormativity is important, because it provides a legally authoritative (and therefore powerful) discursive resource that can be mobilized to challenge the ubiquity of heteronormative claims in contemporary societies.

Footnotes
1

Article 14 of the Convention states: ‘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’.

 
2

Article 8(1) of the Convention states: ‘Everyone has the right to respect for his private and family life, his home and his correspondence’.

 
3

For a recent history of this case law see Johnson (2010) which examines 27 judgments of the Court, delivered between 1976 and 2008, that concern a wide range of complaints brought in relation to sexual orientation. For additional commentaries and analysis of the Court’s approach to sexual orientation see: Moran (1996), Stychin (2003), and Wintemute (1995).

 
4

Providing evidence of an explicit focus on an applicant’s homosexuality by a public authority has now become the central basis for complaints under Article 14 because the Court has stated that ‘if the reasons advanced for a difference in treatment were based solely on the applicant’s sexual orientation, this would amount to discrimination under the Convention’ (Kozak v Poland, Application no. 13102/02, Judgment of 2 March 2010).

 
5

By the standard of the Court’s published judgments, E.B. contains an unusually large number of separate opinions. There are five separate opinions annexed after the majority judgment: one concurring, and four dissenting. Of the four dissenting opinions, there is one group opinion (by Judge Costa joined by Judges Türmen, Ugrekhelidze and Jočienė) and three individual opinions (by Judge Zupančič, Judge Loucaides, Judge Mularoni). As I show throughout this article, the opinions of these dissenting judges provide an important counterpoint to the majority and help illuminate how the Court reached its judgment. However, the dissenting opinions should not be regarded as a homogenous set of views but rather, as Boussiakou and White (2009) argue, as expressions of the heterogeneous ‘judicial temperaments’ and ‘values’ of the individual judges. I discuss these dissenting opinions throughout the article but summarize their key arguments here to show that they are not necessarily all (or uniformly) ‘homophobic’. The opinion of Judge Costa and his colleagues was that, whilst they supported in principle the applicant’s claim that a person seeking to adopt should not be prevented from doing so merely on the ground of their sexual orientation, they could find no evidence in the ‘facts’ to suggest that sexual orientation was the decisive ground on which Ms. B.’s application had been refused. Judge Zupančič also disputed the evidential grounds for the complaint, but disagreed in principle with the view that homosexuals had a ‘right’ not be discriminated against because adoption is not recognized under the Convention as a ‘right’ but is regarded as a ‘privilege’. Judge Loucaides argued that while the facts showed that the domestic authorities had not refused Ms. B.’s application on the grounds of sexual orientation, if this had been a factor then the applicant’s complaint should not have been deemed admissible because her sexual orientation made her incompatible with ‘certain activities’ that, by their nature, are incompatible with a homosexual ‘lifestyle’. Finally, Judge Mularoni argued that the grounds offered by the domestic authorities were sufficient and relevant for refusing Ms. B’s application because, although he could find no evidence in the facts to support her claim that her sexual orientation was the decisive ground on which she had been refused, it was appropriate for the ‘personality and attitude’ of the applicant and her partner ‘to be taken into account by the authorities’.

 
6

For a sustained critique of the idea that heterosexuality is the outcome of ‘natural’ sex differences between men and women see Butler’s (1990) account of how the ‘heterosexual matrix’ is itself productive of the ontology of gender and sex difference.

 
7

Rich argues that there is a ‘silence’ in contemporary societies in relation to heterosexuality so that, instead of speaking about heterosexuality as a social and political construction and mode of organization, it is a ‘taken for granted’ aspect of social life. Similarly, other commentators have argued that heterosexuality is a ‘silent’ identity that goes largely unnamed in social life because it is hegemonically understood to be the ‘normal’ way of being human (for example: Wilkinson and Kitzinger 1993).

 
8

Article 343-1 of the Civil Code states that ‘any person over twenty-eight years of age’ may apply to adopt a child.

 
9

Judge Loucaides reiterated this view, in his dissenting opinion, in a more candidly homophobic way: ‘I believe that the erotic relationship with its inevitable manifestations and the couple’s conduct towards each other in the home could legitimately be taken into account as a negative factor in the environment in which the adopted child was expected to live. Indeed there was, in these circumstances, a real risk that the model and image of a family in the context of which the child would have to live and develop his/her personality would be distorted’ (E.B. v France, dissenting opinion of Judge Loucaides).

 
10

There is now a significant body of academic work that critically analyzes how the ‘child welfare’ discourses utilized by professionals, whilst often emphasizing a non-discriminatory approach to assessing the suitability of applicants for adoption, are founded upon a range of heteronormative assumptions. For example, Hicks (2001) shows how fostering and adoption professionals reiterate a series of assumptions about the ‘fitness’ of applicants that rely upon heteronormative ideas about particular gender and sexuality ‘roles’ that are vital for children’s development. Hicks argues that ‘the lesbian’ is frequently constructed as a ‘threat’, as ‘militant’, or as ‘safe’ in assessments, and that only certain types of homosexuals are likely to be approved to foster or adopt—those ‘good lesbians’ that approximate heteronormative ways of behaving.

 
11

If that was the question then it could have been answered in relation to a consideration of how forms of ‘indirect discrimination’ arise when particular individuals or groups cannot meet criteria adopted for assessing applications. However, Ms. B.’s application went beyond a consideration of indirect discrimination because it alleged that a direct concern for her sexual orientation, whilst not made explicit, was decisive to the decision-making of the domestic authorities.

 
12

For a fuller consideration of Fretté, and the differences and similarities with E.B., see: Doty (2009). See also: Hart (2009), Johnson (2010), and Letsas (2008).

 
13

The Convention is regarded by the Court as a ‘living instrument’ that becomes subject to reinterpretation ‘in the light of present-day conditions’ (Tyrer v United Kingdom, A 26 (1978); 2 EHRR1, para.31). As Mowbray has argued, the ‘living instrument’ doctrine has enabled the Court to update its interpretation of a number of Convention Articles in light of social, legal, and economic changes (2005, p. 69). Mowbray (2005) provides an excellent overview of the ways in which the Court has ‘creatively’ interpreted the Articles of the Convention across a varied range of complaints.

 
14

The existence of Article 343-1 of the French Civil Code, which allows ‘any person’ to apply to adopt a child, was decisive to the Court’s decision to deem the complaint within the ambit of Article 8 for the purposes of Article 14. Without Article 343-1 the application would certainly have been deemed inadmissible on the grounds that Article 8 does not provide any right to adoption. The Court stated: ‘The present case does not concern adoption by a couple or by the same-sex partner of a biological parent, but solely adoption by a single person. Whilst Article 8 of the Convention is silent as to this question, the Court notes that French legislation expressly grants single persons the right to apply for authorisation to adopt and establishes a procedure to that end. Accordingly, the Court considers that the facts of this case undoubtedly fall within the ambit of Article 8 of the Convention. Consequently, the State, which has gone beyond its obligations under Article 8 in creating such a right […] cannot, in the application of that right, take discriminatory measures within the meaning of Article 14’ (E.B. v France, para. 49).

 
15

The Court was not willing to recognize the complaint as admissible under the ‘family life’ component of Article 8. In a more recent development (Schalk and Kopf v Austria, Application no. 30141/04, Judgment of 24 June 2010) the Court has recognized that same-sex partnerships fall within the ambit of ‘family life’ but it remains to be seen what impact this will have on the rights of homosexuals (either as single individuals or same-sex couples) seeking to adopt a child.

 
16

Article 7(1) states that ‘The law shall permit a child to be adopted […] by two persons of different sex’ or ‘by one person’. Article 7(2) introduces the following provision: ‘States are free to extend the scope of this Convention to same sex couples who are married to each other or who have entered into a registered partnership together’. European Convention on the Adoption of Children (Revised), Strasbourg, 27.XI.2008.

 
17

The significance of the recognition that the Court gives to non-heteronormative family formations in E.B. should not be underestimated. Given that Ms. B. and her partner did not present a joint application to adopt a child as a ‘couple’, the Court can be seen to acknowledge family formations outside of the normative ideal of the monogamous, two-parent family. The judgment suggests that the Court accepts that the demand of non-heterosexuals, to be recognized as capable of establishing families, is one aspect of a plurality of family forms that exist in contemporary societies (Weeks, Heaphy and Donovan 2001).

 
18

At the time of writing, the Court already has a case pending (Chapin and Charpentier v. France, no. 40183/07) in which a same-sex couple will challenge the heteronormativity of Article 12. The applicants’ complaint is that their marriage, despite being conducted by the mayor of Bègles (France), was subsequently declared null and void by the domestic courts. E.B. provides the Court with a potentially powerful resource to underpin a ‘creative’ interpretation of Article 12 of the Convention ‘in light of present conditions’.

 
19

Considering the impact of the Court’s judgments is, by necessity, speculative since, as Keller and Sweet (2008) argue, there is no causal theory and only sparse empirical data on the impact of the Convention within contracting states.

 
20

I have argued elsewhere (Johnson 2010) that the Court’s discourse on homosexuality has established distinct ontological ideas about homosexuality and, as such, contributes to nothing short of the ongoing making of the ‘modern homosexual’.

 

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© Springer Science+Business Media B.V. 2012