The ECHR Article 8’s Right to Privacy: Cordon Sanitaire or Isolation Tank? Homosexuality, Transsexualism, and Sado-Masochism in the ECtHR Case-law.

The paper would deal with the interpretation of Article 8 of the European Convention on Human Rights given by the European Court of Human Rights in its case-law regarding homosexuality, transgender rights, same-sex partnerships, sadomasochism.
Initially intended as the provision of the Convention protecting family and private life against the whole gamut of fascist and communist inquisitorial practices (J. Sir Gerald Fitzmaurice, Marckx v. Belgium, 1979), in the last thirty years Article 8 transformed itself into the guarantee to many of the newly claimed rights, especially (but not only) in sexual matters: in particular, the expanded interpretation of “the right to private life” shifted from the foundational idea of protecting individuals from the totalitarian threats to freedoms to encompassing new rights promoting the individuals' personal identity. What change of relation among the individual, the community and public powers might be inferred before this shift?

Sexual Identities Before International and European Courts Advancing LGBT Rights Through Self-Government

Territorial autonomy is traditionally regarded as a guarantee of
citizens participation and as a tool for protecting civil liberties.
This paper aims to show that LGBT rights are no exception to this
assumption: irrespective of the jurisdiction at stake, vertical
division of powers greatly contributes to the enjoyment of LGBT
rights, as recent sub-national practice from both Europe and the
United States indicate. The analysis will be conducted as follows:
first, it will be made clear what kind of institutional principles and
devices at local level may foster the development of a pluralistic
rights culture; then, the validity of these instruments will be tested
against the actual recognition and exercise of LGBT rights. Finally,
it will be argued that LGBT rights may eventually gain acceptance as
fundamental rights among the general public insofar as they develop at
the grassroots level. In this respect, subsidiarity works as a
powerful tool for enabling progress from the “bottom-up”.

From Facts to Feelings. LGBT Identities Before European Courts

Law and human rights are increasingly estranged from their factual dimension. Self-understanding/definition along with personal feelings/inner statuses are acquiring relevance, especially in the interpretation of domestic/HR courts. The shift “from facts to feelings” is visible in the area of LGBT rights, through which new paradigms of legal protection are emerging. The paper firstly focuses on the evolutionary protection of “the right to family life” (Art. 8 ECHR), it secondly takes into consideration the debate about recognition of transsexual people/gender reassignment and it finally addresses some of the questions that these judicial/legal trends arise. The paper argues that judicial recognition of individual/LGBT rights is accelerating a trend which valorize/prioritize inner feelings over socially recognizable facts/goods. Moving “from facts to feelings” requires nonetheless new lens of analysis for balancing contemporary social exigencies and individual entitlements.