The evolution of an LGBT-inclusive notion of family in the jurisprudence of the European Court of Human Rights

Abstract

This work draws the evolution of an LGBT-inclusive notion of family occurred in the jurisprudence of the ECtHR. Part I provides context: after motivating the choice of examining such caselaw, it elucidates the role of evolutive interpretation in shaping a "new" notion of family and the gateway that such approach to interpretation offers to LGBT advocates; then, it provides considerations about judicial activism and the most controversial methods the Court uses to determine its level of activism when it deals with the family rights of LGBT persons: the doctrines of the margin of appreciation and consensus analysis. Part II is a review of the relevant judgements, divided into "phases", which best show the Court's step-by-step approach in recognizing family rights to LGBT persons through a progressive erosion of the space of manouvre accorded to national governments. The cases are therefore dealt with chronologically, and include issues which the Court has mostly decided on through the steady – though not always linear - development of the interpretation of Artt. 8 and/or 12 combined with Art. 14 of the ECHR, such as the rights of same-gender stable couples, same-gender marriage, the legal criticalities of transexualism with respect to marriage, and discrimination based on sexual orientation and gender identity towards individuals who seek to adopt children. The review stretches from the 1980s up to 2015, year of the groundbreaking judgement Oliari and Others v. Italy.