In this second post on the Grand Chamber judgment in X. and Others v. Austria, I will focus on the narrowness of it all: the narrowness of the issue before the Court, the narrowness of the ruling and the narrow approach the majority took to the European consensus. Although I believe the majority should be applauded for taking incremental steps towards extending equal rights to LGBT persons, the approach it takes to the European consensus leaves much to be desired. Indeed, X. and Others provides a perfect example of how the Court sometimes uses the consensus argument to provide a post hoc rationalisation and justification of an outcome it has already reached, rather than as a substantive argument that leads to that outcome.
This guest post – the first in a two-post series on X. and Others v. Austria – was written by Grégor Puppinck*
On the 19th of February, the Grand Chamber of the European Court of Human Rights published its ruling in the case of X and others v. Austria (no. 19010/07), which decided by ten votes against seven, that the impossibility of second-parent adoption in a same-sex relationship is discriminatory when such adoption is possible for unmarried different-sex couples. The reasoning may be thus summarised: If the woman had been a man, the adoption would have been possible, so it must be possible while the woman is not a man in the name of non-discrimination according to sexual orientation.
The two unmarried women, who took action on their own behalf and on the behalf of the child who was a minor, claimed to have suffered discrimination based on their sexual orientation and invoked the right to respect for their private and family life (art. 8) as well as the prohibition of discrimination (art 14). “They submit that there is no reasonable and objective justification for allowing adoption of one partner’s child by the other partner if heterosexual couples are concerned, while prohibiting the adoption of one partner’s child by the other partner in the case of homosexual couples.” (Presentation of facts made by the registrar of the Court.)