Equal Human Rights for Same-Sex Couples and Parents
Submitting InstitutionKing's College London
Unit of AssessmentLaw
Summary Impact TypeLegal
Research Subject Area(s)
Law and Legal Studies: Law
Summary of the impact
Prof. Robert Wintemute has presented his comparative law research on
sexual orientation discrimination to the European Court of Human Rights or
ECtHR (through written and oral arguments on behalf of intervening
non-governmental organisations or NGOs), and the Inter-American Court of
Human Rights or IACtHR (through oral and written evidence as an expert
witness). His research has helped to persuade these Courts to adopt
landmark judgments that greatly improve legal protection of the rights of
same-sex couples and parents in the 47 countries with combined populations
of over 800 million people that are parties to the European Convention on
Human Rights (EConHR), and the 23 countries with combined populations of
over 550 million people that are parties to the American Convention on
Human Rights (AConHR).
Since 1 Jan. 1993, Prof. Wintemute has been continuously engaged in
research at King's on all forms of discrimination based on sexual
orientation, including decisions by legislatures, courts and other public
authorities to deny to lesbian and gay individuals or same-sex couples the
same rights as heterosexual individuals, or married or unmarried
different-sex couples. In this field, which barely existed in 1993, he has
become one of the leading academic lawyers in the world.
In early 1993, the legal situation for same-sex couples and parents in
Europe, the USA and Canada was grim. There were no favourable decisions
from the ECtHR, the EU's Court of Justice, the UK's House of Lords, the
IACtHR, or the US or Canadian Supreme Courts. Same-sex couples could
register their relationships in Denmark, but nowhere else in the world.
Allowing a same-sex couple to marry was legally and politically
unthinkable, and there were no laws (in force) or appellate court
decisions authorising joint adoption of children. Discrimination against
same-sex couples and parents was largely seen as legal and unproblematic.
Through his research, Wintemute challenged this hostile status quo. By
analysing trends in international human rights law, EU law, and national
constitutional, criminal and family law, together with other data
(including resolutions of the Council of Europe's Parliamentary Assembly
and the EU's European Parliament), he has developed a conceptual framework
for analysing discrimination based on sexual orientation. This provides
arguments for interpreting international human rights treaties and
national constitutions as requiring differences in treatment based on
sexual orientation to be treated as "suspect" (prohibited discrimination
unless the government can establish a strong justification for them), in
the same way as differences in treatment based on race, religion or sex.
The underlying rationale is that an individual's sexual orientation is
difficult to change, or should not have to be changed, like their race,
religion or sex. He has also perfected an analysis of sexual orientation
discrimination as also constituting sex discrimination, and therefore
prohibited by existing law. Wintemute has demonstrated that, whether a
"sexual orientation" or "sex" approach is adopted, it would be extremely
difficult to justify denying same-sex couples the rights of different-sex
couples (including access to marriage), or excluding lesbian and gay
individuals and same-sex couples from access to parental rights, including
custody of their genetic children, adoption of children, and use of donor
insemination or surrogacy.
His research outputs include books published in 1995  and 2001 ,
both viewed as key texts, and several articles [3, 4, 5]. David (now Lord)
Pannick said of : "an important new book ... recommended to judges and
politicians" (The Times, 26 March 1996), Andrew Koppelman, called
it "a valuable contribution... I know of no comparative study in this area
that is more thorough" (Michigan Law Review, May 1997, vol. 95,
pp. 1636-1667), while John Gardner said: "a rare combination of legal
learning and moral insight...does much...to illuminate the structure,
scope, and significance of anti-discrimination law as a whole" (Oxford
Journal of Legal Studies, Spring 1998, vol. 18, pp. 167-186).
The 2001 text , which Wintemute edited, was launched at the House of
Commons on 9 Jan. 2002 in the presence of Lord Lester, whose Civil
Partnerships Bill was introduced the next day, six MPs, and Cabinet Office
representatives, and at the Law Society of Barcelona on 27 May 2002,
before members of the Spanish and Catalan Parliaments. It was reviewed by
Alan Inglis, Family Law, Feb. 2002, p. 151 ("the Government is
'following with interest' debates about the legal status of gay and
lesbian relationships. It is difficult to conceive of a more thorough
treatment of those debates than that provided in this book.") and International
Family Law, March 2002, pp. 49-51 ("an invaluable study of the
issues ... in a debate that is ...assuming increasing importance"), by Ian
Sumner, Cambridge Law Journal, July 2002, pp. 473-75 ("an
essential tool... The breadth of material is extremely impressive ...
bring[ing] together the legal climate of ...  jurisdictions, along
with the activity at ...the European and international level [and
providing] a theoretical basis to the discussion."), by Bruce MacDougall,
Adelaide Law Review, 2002, Vol. 23, pp. 177-81 ("surely one of the
must-reads for anyone involved in gay and lesbian studies or with
international family law."), and by Loveday Hodson, Human Rights Law
Review, 2002, Vol. 2, pp. 343-47 ("an impressive snap-shot of legal
developments .. a reflection of a growing global consensus that same-sex
relationships ought to be offered the protection of the law.").
References to the research
(all available from King's College London on request)
(1) Sexual Orientation and Human Rights: The United States
Constitution, the European Convention, and the Canadian Charter
(Oxford University Press, 1995).
(2) Legal Recognition of Same-Sex Partnerships: A Study of National,
European and International Law (Oxford, Hart Publishing, 2001) (with
honorary co-editor Mads Andenæs and 45 contributors from 25 countries).
Wintemute also contributed the Introduction, the Conclusion and his own
chapter: "Strasbourg to the Rescue? Same-Sex Partners and Parents Under
the European Convention", pp. 713-29.
(3) "Recognising New Kinds of Direct Sex Discrimination: Transsexualism,
Sexual Orientation and Dress Codes", (1997) 60 Modern Law Review
334-359; cited by Lord Justice Ward, Court of Appeal (England and Wales),
Smith v. Gardner Merchant Ltd.,  3 All ER 852; Lord
Prosser, Court of Session, Inner House (Scotland), Secretary of State
for Defence v. MacDonald,  IRLR 431; Lady Justice
Hale, Court of Appeal (England and Wales), Pearce v. Mayfield
Secondary School,  IRLR 669; Lords Hope and Rodger, House of
Lords, Advocate General for Scotland v. MacDonald, 
(4) "Sexual Orientation and the [Canadian] Charter: The Achievement of
Formal Legal Equality (1985-2005) and Its Limits", (2004) 49 McGill
Law Journal 1143-1180.
(5) "Same-Sex Couples in Secretary of State for Work and Pensions
v. M: Identical to Karner and Godin-Mendoza, Yet
No Discrimination?",  European Human Rights Law Review
722-735 (criticising House of Lords decision, which was effectively
reversed by ECtHR in 2010).
Details of the impact
Prof. Wintemute's research and detailed knowledge of comparative law
developments have allowed him to contribute to campaigns for legal change
and significantly influence the development of human rights law. In 1999,
he set out to find ways to participate in cases of discrimination against
same-sex couples or parents in international human rights courts, because
these cases can benefit many more countries than cases in national courts.
Judgments of the ECtHR apply to the 47 countries (with combined
populations of over 800 million people) that are parties to the EConHR.
Judgments of the IACtHR apply to the 23 countries (with combined
populations of over 550 million people) that are parties to the AConHR.
Favourable judgments of these courts could therefore benefit all lesbian
and gay individuals and same-sex couples and parents in these countries,
and their children.
Before 2000, there had been no "third-party interventions" in ECtHR cases
on sexual orientation discrimination. Seeing an opportunity to combine his
pre-PhD litigation experience at a New York law firm with his research at
King's, Wintemute contacted an NGO (ILGA-Europe, the European Region of
the International Lesbian, Gay, Bisexual, Trans and Intersex Association)
about a potential third-party intervention. In so doing, he created an
academic-NGO partnership, which transformed ILGA-Europe's work, by opening
up a whole new field of activity, strategic litigation. Since 2000,
ILGA-Europe has been granted leave to submit 14 interventions to the
ECtHR, 9 of which Wintemute has drafted. In these 9 interventions (on
behalf of ILGA-Europe and 9 other NGOs, including the International
Federation for Human Rights or FIDH, and the International Commission of
Jurists), he has drawn on his research and expertise to advise the ECtHR
as to whether developments in comparative law support a finding of
discrimination violating the EConHR.
Since 1 Jan. 2008, these interventions have helped to persuade the ECtHR
to adopt crucial anti-discrimination principles in five cases, outlined
below. In cases (1)-(3) and (5), the only intervention supporting the
applicants was drafted by Wintemute, while in case (4), Amnesty
International's intervention stressed United Nations materials of limited
relevance to the case. In all five cases, the interventions contained much
more detailed comparative law research than the written arguments of the
applicants' lawyers. In case (4), only the intervention drafted by
Wintemute made the specific "European consensus" argument mentioned below.
All 5 judgments discussed below are extremely useful precedents, which
practising lawyers and NGOs around the world are citing when they seek
legal reforms from national legislatures and courts. For each case, the
paras. of the judgment with the court's reasoning are cited, followed by
the paras. of the judgment referring to the intervention (ECtHR) or report
(IACtHR) or to the specific arguments it makes, and the paras. or pp. of
the intervention or report where those arguments can be found:
(1) Karner v. Austria (Chamber judgment of 24 July 2003):
Countries that grant rights to unmarried different-sex couples must
grant the same rights to unmarried same-sex couples: (judgment
paras. 39-43 for reasoning; judgment paras. 8, 27, 36 for references; cf.
intervention pp. 2-9) (right to remain in home after death of tenant).
Although decided in 2003, Karner's impact continued when it was
cited and applied by the ECtHR in Kozak v. Poland (2 March
2010, same facts as Karner), P.B. & J.S. v. Austria
(22 July 2010, sickness insurance cover for partners of civil servants),
and J.M. v. UK (28 Sept. 2010, calculation of child
support), the subject of  above.
(2) E.B. v. France (Grand Chamber judgment of 22 Jan.
2008): Countries that permit unmarried individuals to adopt children
may not exclude lesbian women or gay men (judgment paras. 94-97 and
Judge Costa's opinion para. 3 for reasoning; judgment para. 3 for
reference; cf. intervention paras. 7-37). This judgment overruled Fretté
v. France (2002), which had allowed governments to exclude lesbian
and gay individuals from the possibility of adopting children.
(3) Schalk & Kopf v. Austria (Chamber judgment of 24
June 2010): "A cohabiting same-sex couple ... falls within the notion
of 'family life' [in Article 8]" (judgment para. 92-94 for
reasoning; judgment paras. 5-6, 84 for references; cf. intervention paras.
4-13); and the right to marry in Article 12 could apply to a same-sex
couple in the future (judgment para. 61 for reasoning; judgment
paras. 5-6, 47-48 for references; cf. intervention paras. 14-27). This
overruled prior decisions by the ECtHR that same-sex couples did not enjoy
"family life" under Article 8 (Mata Estevez, 2001), and that
Article 12 "secures the fundamental right [only] of a man and woman to
marry" (Christine Goodwin, 2002). The "family life" statement was
cited by the IACtHR in Atala v. Chile, 24 Feb. 2012 (para.
174), and by Italy's Corte di Cassazione (Supreme Civil Court), 15
March 2012 (part 4.2, pp. 72-74). A third aspect of Schalk is the
dissenting opinion (3 of 7 judges), which agreed with the intervention
that the absence of a legal framework for same-sex couples in Austria
(like the UK's Civil Partnership Act 2004) was discrimination violating
the EConHR (dissenting op. paras. 4-6, 9-10 for reasoning; judgment paras.
5-6, 85-86 for references; cf. intervention paras. 28-44).
(4) X & Others v. Austria (Grand Chamber judgment of
19 Feb. 2013): Countries that permit unmarried different-sex couples
to adopt each other's children may not exclude same-sex couples
(judgment paras. 139-141, 151, 153 for reasoning applying Karner,
paras. 7, 78-80 for references; cf. intervention paras. 6-15, 20-38); the
burden of proof is on the government to justify the exclusion of
same-sex couples (judgment para. 141 for reasoning; judgment para. 7
for reference; cf. intervention para. 14); and "European consensus"
should be assessed by examining only Council of Europe member states
that allow unmarried couples to adopt, not all 47 member states
(judgment para. 149 for reasoning, paras. 7, 79 for references; cf.
intervention paras. 16-19). X & Others made visible the
discrimination suffered by children of same-sex parents in most European
countries, which do not permit a child to have two legal parents of the
same sex. It will require changes to the laws of 7 European countries
(unless they abolish adoption by unmarried couples), and could inspire
changes in others.
(5) Vallianatos v. Greece (intervention on 20 June 2011;
hearing on 16 Jan. 2013; Grand Chamber judgment finalised on 11 Sept.
2013, published on 7 Nov. 2013): Countries that create an alternative
to marriage for different-sex couples must extend the alternative to
same-sex couples (judgment paras. 85, 91-92 for reasoning, paras. 6,
69 for references; cf. intervention paras. 3-8).
Prof. Wintemute's reputation for work in the ECtHR gave rise to a second
form of participation in the case of Atala v. Chile, the
IACtHR's first dealing with any aspect of lesbian and gay human rights.
Having been proposed by Ms. Atala's lawyers, he was invited by the IACtHR
to appear as an expert witness at a hearing held in 2011 in Bogotá,
Colombia. He was asked to provide a report on international law with
regard to sexual orientation discrimination, with emphasis on the EConHR,
because a critical question for the IACtHR was how the ECtHR would handle
a similar case. Wintemute's evidence on this specific question helped to
persuade the IACtHR to conclude:
(6) Atala v. Chile (judgment of 24 Feb. 2012): Sexual
orientation is a "protected category" under the AConHR (judgment
para. 91 for reasoning; judgment para. 18(c) for reference; cf. report pp.
2-5, 17-21, 22-23, 25-26); it was discrimination to transfer custody
of 3 girls from their lesbian mother to their heterosexual father
(judgment para. 146 for reasoning; judgment paras. 18(c), 134 and 153 and
footnotes 126 and 157 for references; cf. report pp. 8-14, 21, 24). Atala
lays the foundation for future IACtHR case law regarding sexual
orientation discrimination in the criminal law, in access to employment,
or in relation to the rights of same-sex couples, as well as with regard
to parental rights other than custody (including access to adoption).
Prof. Wintemute speaks frequently at conferences, seminars and NGO
training sessions about the potential applications of these judgments (eg,
Universidad Diego Portales, Santiago, Chile, 8 Nov. 2012; Ministry
of Foreign Affairs, Tallinn, Estonia, 23 Sept. 2013; Bandhu Social Welfare
Society, Dhaka, Bangladesh, 9 Nov. 2013; all funded by the local British
Embassy or High Commission).
Sources to corroborate the impact
(a) Published sources
ECtHR judgments are at: http://hudoc.echr.coe.int.
The interventions drafted by Wintemute and submitted to the ECtHR on
behalf of ILGA-Europe and other NGOs may be found at:
The IACtHR's Atala judgment is at: http://www.corteidh.or.cr.
A copy of the report submitted by Wintemute to the IACtHR will be provided
(b) Individuals familiar with the impacts
(i) Statement by ILGA-Europe's Council of Europe Adviser who corroborates
the significant role played by Wintemute in cases (1) to (5), including
how he approached ILGA-Europe with a proposal to bring his comparative law
research to the attention of the ECtHR through strategic interventions,
how this has transformed ILGA-Europe's advocacy, how he and ILGA-Europe
subsequently developed and implemented this strategy from 2000 to date
(with impacts from 1 Jan. 2008), and the value of the ECtHR's judgments in
cases (1) to (5) to human rights lawyers.
(ii) Statement by a prominent Belgian law professor, former
Secretary-General of the International Federation for Human Rights (FIDH),
and United Nations Special Rapporteur who corroborates the significant
contribution made by Wintemute's research to the judgements in cases (1)
(iii) Statement by the International Commission of Jurists' former Senior
Legal Adviser on Sexual Orientation who corroborates the critical
influence of Wintemute's research on the ECtHR and IACtHR's reasoning in
cases (1) to (6), and the value of these judgments to human rights
(iv) A former Judge (1998-2012) and President (2011-12) of the ECtHR who
may be contacted to comment generally on the helpfulness to the ECtHR of
the interventions in cases (1) to (5).
(v) A former Judge (1998-2012) and Vice-President (2011-12) of the ECtHR
who may be contacted to comment generally on the helpfulness to the ECtHR
of the interventions in cases (1) to (5).