A hollow—and slightly homophobic—victory for LGBTIQ+ rights? Fedotova and others v Russia
By Professor Lucas Lixinski
Published on 22 February 2023
The European Court of Human Rights’ (ECtHR) Grand Chamber consolidated its jurisprudence on the legal recognition of same-sex relationships in Fedotova and others v Russia (Fedotova). In doing so, it advances a key cause that has occupied, for better or worse, much of the time and energy of LGBTIQ+ advocates around the world. At the same time, the victory is somewhat hollow: Russia, although technically bound by the judgment, is unlikely to comply since it left the Court’s jurisdiction in the aftermath of the invasion of the Ukraine—and the Court’s technical reasoning is at times troubling—even if the overall outcome can be read as a positive.
Fedotova is about six people who were at one time in three same-sex couples (two of those couples split up in the years it took the ECtHR to decide the case), who were denied the right to marry or have their relationships recognized through any legal means in Russia. On the basis of this denial, they alleged a violation of their right to private and family life (Article 8 of the European Convention on Human Rights, ECHR), and also their right not to be discriminated against (Article 14 ECHR, which, in the ECtHR’s practice, needs to be tied to another right, which in this case means Articles 14+8).
In considering the claims, the ECtHR surveyed a wide range of international, regional, and domestic law on the legal recognition of same-sex relationships. It did so to shore up an argument for consensus interpretation, which suggests that the ECtHR can adopt progressive positions on matters of social policy when there is enough consensus in that progressive direction, even if the affected state has a different position. For the most part, this exercise means looking at what other Council of Europe countries do (which the ECtHR did, paras. 65-67), but, as Dzehtsiarou notes in his landmark monograph on this interpretive technique, it is also possible to go beyond. In particularly sensitive areas, the ECtHR may choose to also rely on international and regional human rights law, and even from other regions. This includes the Inter-American Court, to whose important Advisory Opinion on the rights of gender-diverse persons and recognition of same-sex relationships the ECtHR referred.
Analysing the Article 8 claim, the ECtHR focused on this provision much as it focuses on Article 8 across its LGBTIQ+ rights jurisprudence more generally. It avoided Article 12 ECHR, which is specifically on the right to marry, because it sees its text as clearly heteronormative. The provision states that ‘Men and women of marriageable age have the right to marry and to found a family’. I personally do not see how that language means defining marriage as being only between a man and a woman, given the use of the plural, but the ECtHR has settled on that interpretive path (see multiple judgments cited at para. 165), which perhaps also nods to some latent homophobia, which I discuss further below.
Back to Article 8, the ECtHR states the right to private and family life extends to ‘the possibility for the individual to develop his or her social identity’ (para. 143, note the use of binary pronouns, a quibble for another time), thus extending to a broader spectrum of relationships, including affective relationships. The ECtHR then stated that all member states of the Council of Europe have a positive obligation to provide legal recognition to same-sex relationships, even if it were up to each state to decide whether said recognition was marriage or some other form (paras. 164-165). That the ECtHR accepts the imposition of varying degrees of legal recognition also speaks to a reluctance to equalize same-sex and cisgender-heterosexual relationships. In other words, the ECtHR insists that states have a ‘significantly reduced’ margin of appreciation on the question of whether to recognize same-sex relationships (para. 187), but a still ‘more extensive’ margin when it comes to determining ‘the exact nature of the legal regime to be made available to same-sex couples, which does not necessarily have to take the form of marriage’ (para. 188).
The ECtHR next considered the ‘feelings of the majority of the Russian population’ against the legal recognition of same-sex relationships as a possible justification for the restriction to Article 8, arguing that human rights law fundamentally works to protect minorities against majorities, and not to endorse discriminatory majoritarian sentiment (paras. 216-218). It therefore concluded there was a violation of Article 8 ECHR (para. 225).
The ECtHR, as is common in its jurisprudence, dismissed the Article 14 claims, indicating that it felt the issues had already been resolved under the Article 8 discussion (para. 230). One of the (partly) dissenting opinions, by Judge Pavli and joined by Judge Motoc, dissented precisely because they believed Article 14 should have been considered, since at the core of the case is discrimination against LGBTIQ+ persons and their relationships.
Other dissenters were less progressive. Judge Wojtyczek emphasized the need for a historical interpretation of the ECHR, which would reject its application to LGBTIQ+ rights cases more broadly. Judge Lobov argued there was no European consensus on the matter, and that the use of the method by the ECtHR opened it to attack on its legitimacy, particularly in that it disrespected internal consensus. Lastly, Judge Poláčková, dissented on procedural grounds, alleging the Russian Judge should not have been allowed to sit in the case given Russia’s suspension.
While I am happy in general terms for the jurisprudential consolidation, I do have two key points of attrition, as I indicated above. First, this victory will not benefit victims directly. Russia was suspended from the Council of Europe, and, as of September 2022, no longer a party to the ECHR, even if technically bound by judgments on cases referring to facts prior to that cessation (paras. 68-73). In admitting that the case is unlikely to benefit the victims directly, am I, and those who treat the case as an unequivocal victory for LGBTIQ+ rights, acquiescing to pushing the victims of cases to the background? In other words, am I ready to minimize the harm these victims will continue to suffer considering the lack of implementation, because of how it may benefit others outside Russia? Am I one of those LGBTIQ+ scholars and activists ready to gloss over those who sacrificed for LGBTIQ+ victories and focus on how the victories might benefit me as a white cis able-bodied man (and others like me) who lives in a country that still takes international human rights law (relatively) seriously, much like the LGBTIQ+ movement has been so ready to ignore the plight of trans* people, LGBTIQ+ people of colour, and others when white cis victories have been achieved?
This risk of celebratory acquiescence is the main reason the finding in Fedotova is somewhat hollow. While my position as a scholar prompts me to focus on the field and the broader gains, I am also mindful of David Kennedy’s famous admonishment that, in focusing on the field, we should not lose sight of the problem: queer people in Russia, even before the escalation of domestic repressive politics tied to the invasion of the Ukraine, already had a raw deal. Now they are left hanging, so celebrating Fedotova should prompt us to think about how this judgment can actually help them. Not to be a glass-half-empty sort of person, but the truth is that the ECtHR jurisprudential consolidation would not have happened had it not been for the risks these six people and many other LGBTIQ+ people in Russia have taken and still take. We owe them this limited victory, so we should find ongoing ways to support them.
The second major discomfort I have in relation to the case is how the ECtHR structured its analysis of the possible proportionality of the denial of the legal recognition of same-sex relationships. Specifically, in considering the proportionality of Russia’s restriction of legal recognition of these relationships, the ECtHR examined the allegation that the ‘public-interest grounds’ behind the restriction were the ‘protection of the traditional family’ (paras. 206-213). There, the ECtHR ‘reiterate[d] that support and encouragement of the traditional family is in itself legitimate or even praiseworthy [and] a weighty and legitimate reason which might justify a difference in treatment on grounds of sexual orientation’ (para. 207, emphases added). In doing so, the ECtHR pays deference to the preponderant sentiment in many European countries still, which shores up its long-term legitimacy. But it also allows for a continuation of a debate that assumes that LGBTIQ+ people and their relationships are some sort of newfangled idea, that queer people have not been around for as long as there have been humans, and that their relationships somehow matter less.
Despite my evident dislike for this finding, part of me is also tickled by the ECtHR’s framing of queer relationships as containing deep subversive and even radical potential (inasmuch as they do not fit with the ‘traditional family’). Yes, queer relationships can be radical, subversive, and radically subversive. But queer relationships can also be just basic relationships formed by basic people, riddled with bickering over paint colours and what to watch on television. My point is that it is not for the ECtHR to make this choice one way or the other, especially when making this choice endorses pitting LGBTIQ+ people, and their kinship connections and relationships, against the rest of society. That type of acquiescence is potentially even worse than my worry about us celebrating the narrow victory of the case at the expense of LGBTIQ+ persons in Russia, and makes the ‘victory’ in Fedotova bitterer still.
Do I want it all, and now, for LGBTIQ+ rights? Yes. While I can appreciate the legitimacy constraints under which the ECtHR operates (particularly in this case, given the sensitivities around Russia’s denunciation of the ECHR), we have been around for far too long, and been way too patient, to accept half-measures that can still condone and stoke discrimination and violence against LGBTIQ+ people around the world. The ECtHR owes us (and itself) better.