PANEL SESSIONS V WEDNESDAY JUNE 27 2018 9.00 AM – 10.30 AM

Room: CPD-LG.39

  • JUDGING IDENTITIES. LGBT RIGHTS BEFORE EUROPEAN COURTS
    This panel focuses on LGBT‘s fundamental rights judicial process of acknowledgement in Europe both at national and supranational level. In particular, it unfolds along three lines of thought: firstly, from a general and comparative perspective, the contribution of the vertical division of powers – as indicated by the contributory action of subnational legislation, administrative practice and case-law in this field – to the development of a pluralistic rights culture; secondly, the progressive dematerialization of human rights law “from facts to feelings“ and the consequent change in the legal dialectic between social exigencies and individual entitlements. Thirdly, the expanded interpretation of “the right to private life“ as enshrined by Article 8 ECHR, which shifted from the foundational idea of protecting individuals from the threats known through the whole gamut of fascist and communist inquisitorial practices to encompassing new rights promoting the individuals’ identity.
  • 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?
    • 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.