This blog is the second in a series that takes a snapshot of where LGBT+ rights are in 2018, as a result of some recent significant decisions across the Americas, Europe and India, and considers the portents for change in light of them. In a previous blog post, we considered the position in the Americas. Today, we consider the position in the EU.
Both the Strasbourg and the Luxembourg courts have sought to walk a tight line in recognition of very sharply divided stances across Europe, seeking to avoid – if at all possible – having to take any clear position. Strasbourg has begun to adopt an ‘everything but’ approach (equality in everything but marriage), effectively recognising the right to civil partnerships in cases such as Oliari and Others v Italy  18766/11 and Orlandi & Ors v Italy  26431/12, and becoming increasingly robust in respect of parental rights in cases such as EB v France  43546/02 and X and Others v Austria  19010/07. The CJEU has adopted a similar step-by-step approach, albeit cautiously. Two CJEU judgments this year have sought to provide more substantive sexual orientation equality by adopting sideways steps, taking care not to tackle the more controversial issue of same-sex marriage.
Coman v Inspectoratul General pentru Imigrări C-673/16 concerned free movement rights. The Citizens’ Rights Directive enables free movement between member states by affording citizens the right to bring their families with them, even if their families are not EU citizens. The Directive establishes that such a right is bestowed on, amongst others, a member state’s citizen’s “spouse”. Mr Coman, a Romanian national, sought the appropriate permissions from the Romanian government for his American husband (whom he married in Brussels) to remain in Romania. Romania declined to grant permission. Under its own laws, it did not recognise the American same-sex partner as a “spouse”. The case was unsurprisingly contentious with a number of Eastern European governments making submissions (Hungary, Latvia and Poland) in support of Romania.
The crucial question for the Court was whether the word “spouse” in Directive 2004/38 should be given an autonomous interpretation or whether it should be understood by reference to the laws of the host member state. The legislative history of the word was divergent. The European Parliament had drafted it with one meaning; and the Commission with another, the final result being neutral. Advocate General Wathelet gave an emphatic opinion in favour of recognising same-sex marriages. He noted that it is a basic principle of EU law that, contrary express provision otherwise, language should have uniform meaning. He considered that the word “spouse” related to “marriage”, and is gender neutral and independent of where the marriage was contracted. AG Wathelet further considered that the context and purpose of the Directive required recognition of same-sex marriages, noting among other things that, at the time of the Directive’s formulation, only two states legislated for same-sex marriage; now 11 do (with Austria soon to follow).
In a much-awaited decision, the Court then upheld the conclusion that “spouse” is an autonomous term which includes a same-sex spouse. It was careful, however, to clarify that it remained within an individual member state’s competence to decide whether or not to allow marriage for persons of the same sex. Nevertheless, it recognised that free movement of citizens themselves would be hampered by a pick-and-choose approach to where they could or could not reside, according to the sex of their spouse. This fundamentally undermined the purpose of the Directive and accordingly could not be interpreted restrictively.
The Court also considered whether the non-recognition of same-sex marriages concluded in a different member State could be justified, as the Latvian government submitted, on grounds of “public policy and national identity”. The Court firmly rejected this argument, recognising that any restriction of a fundamental freedom must be strictly limited. It held that an obligation to recognise such marriages for the sole purpose of granting a derived right of residence to a third-country national did not undermine the national identity or pose a threat to the public policy of the member state concerned. It also relied on Strasbourg jurisprudence such as Orlandi v Italy and Vallianatos and Others v Greece, which recognised that same-sex relationships may fall within the meaning of private and family life.
Coman itself had followed another favourable CJEU judgment, in January 2018, about asylum applications. In F v Bevándorlási és Állampolgársági Hivatal  C-473/16, the CJEU considered the lawfulness of the assessment of a homosexual man’s application for asylum in Hungary. The man sought asylum in part because of fear of persecution because of his sexual orientation in his country of origin, Nigeria. He had undergone various personality tests by a psychologist who had prepared an expert report declaring that it was not possible to confirm his sexual orientation. His application was rejected. The lawfulness of the expert report then came under scrutiny in the CJEU.
The Court noted that, as a general principle and pursuant to its various directives concerning the determination of asylum applications, Member States could conduct appropriate assessments in order to assess such applications. However, those directives must also be read to give effect to the Charter. The Court observed that psychological assessments clearly interfered with the art. 7 right to a private life; consent to undergo such assessments could not be considered freely given if the implication of declining such tests was that the state could draw adverse inferences.
The legal assessment therefore concerned justification. The Court found that the interference was not proportionate. On one side of the coin, the interference was “particularly serious”. The applicant’s sexual orientation was an “essential element of his identity”; further, international standards (the “Yogyakarta Principles”) required that no person should be forced to undergo any psychological test on account of their sexual orientation. On the other hand, the credibility of an asylum application concerning sexual orientation could be tested and assessed by other means, including interview by personnel with the appropriate skillsets. Further, it was observed that expert reports could at best only give an indication of sexual orientation and so were approximate in nature. They therefore could not be considered necessary.
You can see the first post from Schona and Nathan here.