(2(b)) HR and Gender - Legal Framework

Question 1

general test to assess merits re provisions that allow limitations

Answer 1

(1) interference with a right must be in due to law of the State
(2) legitimate aim - any limitation/interference must be necessary in a democratic society to protect 1/more of the enumerated purposes (limitation shouldn’t be applied for discriminatory purposes)
(3) interference proportional (consider aim vs seriousness of interference - can’t impaire essence of the R at issue) –> apply margin of appreciation test

Question 2

What does assessing the 3rd limb of the merits test wrt ECHR entail balancing?

Answer 2

requires balancing the various interests at stake; in discrimination cases the ‘weight’ attached to the ground will impact the outcome of the balancing test

Question 3

In regard to the 3rd limb of the merits test wrt ECHR what dictates whether a means used is inadmissible such that there’s a breach of the Convention?

Answer 3

If means used excessive, arbitrary or unfair then not permissible

Question 4

How does the ECtHR apply margin of appreciation test in respect of the third limb of the merits test?

Answer 4

narrower application if consistent practice across Europe where consensus such that individual State’s practice is out of line and broad application where more likely to rule proportionate where practice across Europe varies widely

Question 5

What is an example of a law that violates privacy right and right to freedom of expression of sexual orientation

Answer 5

Toonen case (1994) by HRCommittee –> sodomy laws –> criminalisation justified by State on public health and moral grounds

Question 6

What did HRC hold in the 1994 Toonen case re sodomy laws?

Answer 6

the laws were not a reasonable and proportionate measure

Question 7

In Karner v Austria and Kozak v Poland what did the ECtHR say was required in order for states to adequately justify differential treatment on the basis of homosexual orientation esp wrt private life per Art 8 ECHR?

Answer 7

need weighty reasons to justify!

Question 8

Where a difference of treatment is based on sex or sexual orientation the margin of appreciation afforded to the State is ……. and per the principle of proportionately must be shown that

Answer 8

narrow

and in such situations the principle of proportionality does not merely require that the measure chosen is in general suited for realising the aim sought but it must also be shown that it was necessary in the circumstances

Question 9

In Karner v Austria 2003 (HRC) (succession to a tenancy of flat of deceased same sex partner) - HRC held that whilst Austria’s aim of of protecting traditional fam unit was legit….

Answer 9

given aim of protecting fam in traditional sense is abstract, can use a broad variety of concrete measures for this aim

Question 10

Facts in Pajić v Croatia (2016) ECtHR

Answer 10

• P from Bosnia & Herzegovina wants to join Croatian (same sex) partner
• Croatian law recognises same-sex relationships for specific purposes, but Aliens Law only allows for family reunification of different-sex couples (outside marriage)

Question 11

What was claimed by Pajic in Pajić v Croatia (2016) ECtHR?

Answer 11

Violation of Art 8 ECHR (r to respect for private and family life) and art 14 (prohibition of discrimination)

Question 12

Outcome in Pajić v Croatia (2016) ECtHR

Answer 12

• same sex relationship fell within private life (art 8) + fam life (too since stable relo & regularly together - couldn’t hold the fact they lived apart against them)
• interference? yes, no fam reunification for same sex couples
• discrimination: YES (when compared to unmarried heterosexual couple)
• narrow margin of appreciation for sex and sexual orientation –> no sufficiently weighty reasons given by Croatian gov - no justiication given at all

Question 13

Is there a right to marry under ECHR and ICCPR?

Answer 13

No: Art 12 ECHR - right only to marry per laws of their nation
Art 23(2) ICCPR - r to marry shall be recognised

Question 14

Gender Identity - is registration and recognition of gender identity a human right?

Answer 14

Under Convention of Rights of the Child child should be registered immediately after birth and hvae a right to a name

Question 15

What do the Yogyakarta Principles say about registration of gender?

Answer 15

YP 31 - everyone has R to obtain identity documents regardless of sexual orientation, gender identity, expression or sex characteristics + R to change gendered info in such docs

Question 16

What happened in Godwin v UK (ECtHR)

Answer 16

Godwin a transgender claimed breach of art 8, 12, 13 and 14 ECHR

Question 17

What happened in Godwin v UK (ECtHR)

Answer 17

Godwin a transgender claimed breach of art 8, 12, 13 and 14 ECHR

Question 18

Outcome in Godwin v UK (ECtHR)

Answer 18

Violation of Art 8 and 12 (Right to marry and found fam)
–> * No concrete or substantial hardship or detriment to the public interest had been demonstrated as likely to flow from any change to the status of transgender people.

Question 19

Can a medical or expert declaration be required in order to change legal sex?

Answer 19

Held that yes it could be as in AP v France (ECtHR)

Question 20

Facts in the Seahorse (Freddie McConnell case)

Answer 20

Request to be registered as the child’s father rejected
- many, inter-linked pieces of legislation which may be affected if the word ‘mother’ is no longer used to describe the person who gives birth to a child’

Question 21

Is there a european consensus as to whether a transgender father can be registered as the mother or father on birth certificate of child?

Answer 21

No, focus now on best interests of the child too

Question 22

In OH and GH v Germany (ECtHR) what happened

Answer 22

refusal by german courts to allow transgender parent who gave birth to a child to be recorded as father even though the legal recognition of his gender change to male had already been obtained before the child was conceived

Question 23

Reasoning in OH and GH v Germany (ECtHR)

Answer 23

wide margin of appreciation was given to the states - replacing mother and father by parent 1 and parent 2 wouldn’t protect father from disclosure insofar as parent 1 would still be associated w person who gave birth to the child

Question 24

What was held in Joslin v NZ by the HRC?

Answer 24

determined that the right to marry contained in article 23(2) of the ICCPR referred only to opposite-sex marriage, and it foreclosed any separate claim based on the general right of nondiscrimination contained in article 26 of the ICCPR.

Question 25

What did Goodwin v UK establish?

Answer 25

established a general right for post-operative transgender persons to access legal gender recognition

Question 26

Facts in Hamalainen v Finland (2014) ECtHR

Answer 26

• Applicant a married transgender woman who sought to obtain legal recognition of her preferred gender in Finland
• Finnish authorities refused her request bc applicant contrary to national law, still married
• The applicant and her wife, on the basis of their religious beliefs, were unwilling to automatically convert their marriage into a civil partnership, as provided for under Finnish law. The applicant argued that the conversion requirement set down in national law was a violation of her rights under arts. 8, 12 and 14 ECHR.

Question 27

Outcome in * Hamalainen v Finland (2014) ECtHR

Answer 27

Applicant’s submission rejected –> noted that whilst art 8 ECHR does apply to to a married post-operative transgender person the current Finnish law doesn’t violate her R to private and family life.

THERE WERE ACCEPTABLE ALTERNATIVES (ie converting marriage to a registered partnership)

Question 28

Facts in G v Australia (2017) HRC

Answer 28

• Ms G transgender woman, registered as male at birth, then married a woman, and subsequently underwent gender affirmation surgery.
• successfully changed her name on birth certificate + driver licence + got passport in new name and gender
• bc Aus didn’t permit same-sex marriage States and territories couldn’t change gender on birth certificate of someone married (same restriction didn’t apply to passports)
• meant her birth certificate states that she was born male, but presents and identifies female. It thereby reveals private information about the fact that she is transgender.

Question 29

G v Australia (2017) HRC: held that the fact her birth certificate states that she was born male, but presents and identifies female. It thereby reveals private information about the fact that she is transgender resulted in

Answer 29

breach of art 17
- (1) invasion of privacy (R to control her identity and info about medical history and fact of transgender –> doing so can open to vilification and harassment and she’d avoided applications requiring birth certificate)

• (2) requiring divorce to get BC that correctly identifies her gender is arbitrary interference w her right to fam

Question 30

What was significant about the MW v Denmark case before CEDAW Committee

Answer 30

son of the applicant MW was also considered to have victim status and thus standing –>

For the first time in its history, the CEDAW Committee heard allegations of discrimination against a victim who did not identify as a woman

Question 31

MW v Denmark (CEDAW Committee) established what

Answer 31

that children of those who have victim status under art 2 CEDAW also have standing

Question 32

3 part test to establish an exception to a human right

Answer 32

1) prescribed by law - accessible and foreseeable
2) legit aim (respect for Rs/reputation of others; protection of national security, public order/health/morals)
3) necessary in a democratic –> proportional

limitations are the exception and must be narrowly construed!

Question 33

absolute rights

Answer 33

Rs that can never be restricted! (protection against torture, slavery etc)