JOINT DISSENTING OPINION OF JUDGES TSOTSORIA AND GROZEV

The present case concerns a different-sex couple who, unlike a same-sex couple, could not register their relationship as a civil union under the applicable domestic legislation. The majority rejected the applicants ’ complaint that they had been discriminated against, holding that the applicants, as a different-sex couple, were not in comparable position to a stable same-sex couple. We are unable to follow the majority in this conclusion. We are of the view that for the purposes of the Convention, a same-sex couple and a different-sex couple are in an analogous situation and that any difference in the treatment of these two groups needs to be justified. Consequently, in our view, an analysis was required as to the necessity of the different treatment, namely whether it was objectively and reasonably justified. The respondent Government having presented no sufficiently strong justification in support of the different treatment, we voted for a finding of a violation of Article 14 taken in conjunction with Article 8.

An analysis under Article 14 should address two distinct issues. First, whether the applicant was in an analogous situation to the suggested comparator group, which was treated differently. If this was indeed the case, the second issue to be addressed is whether the difference in treatment was justified. In the present case, the majority already rejected the applicant ’ s complaint when answering the first question. They held that the applicants, as a stable different-sex couple, were not in an analogous situation to a stable same-sex couple. The basis on which the majority reached that conclusion was that the applicants already had access to an institutional arrangement that would provide legal recognition of their relationship, namely marriage. Thus, they were not in a comparable situation to same-sex couples, who did not have the right to marry and thus no access to another form of legal recognition of their relationship.

We find this analysis unconvincing. In our view it confuses the two distinct issues under Article 14 in a way that hollows out the protection provided by this Article. This analysis refuses to compare different-sex couples and same-sex couples as a social reality, but rather sees them as groups created by the legislature, which the legislature may choose to treat differently simply because it sees fit to do so. Different-sex couples and same-sex couples are not groups of individuals which have been created by regulatory choices. They are social groups which exist irrespective of regulatory choices and, more importantly, social groups with regard to which the Court has recognised that they “are in principle in a relatively similar or comparable situation as regards their general need for legal recognition and protection of their relationship” (see paragraph 34 of the judgment; see also Schalk and Kopf v. Austria , no. 30141/04, § 99, ECHR 2010, and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, §§ 78 and 81, ECHR 2013 (extracts)). The fact that there is no right to marriage for a same-sex couple under the Convention, and that marriage confers a special status on those who enter into it, cannot and should not change this conclusion.

The Court has previously held that the exclusion of same-sex couples from marriage is compatible with the Convention because it is justified, and not because same-sex couples are not in an analogous situation to different ‑ sex couples. As mentioned above, in Schalk and Kopf the Court explicitly stated that these two groups were in an analogous situation. After reaching this conclusion, the Court then looked into whether the refusal to provide access to marriage was justified, and it agreed that for reasons of history and tradition, it was. The same approach, in our view, should have been followed in the present case. The alternative takes the Court down a road that justifies in perpetuity a separate but equal approach, one for which we see no justification in the Convention and the case-law of the Court. And it is a risky course, as any justification not rooted in hundreds of years of history and tradition, but rather in fresh legislative choices made today, inevitably runs the risk of sliding into stereotypes about the “different” nature of a heterosexual and a homosexual relationship.

[1] See, for example, Aileen McColgan, “Cracking the Comparator Problem: Discrimination, ‘Equal’ Treatment and the Role of Comparisons”, European Human Rights Law Review , 2006, vol. 6, 666; and Charilaos Nikolaidis, “Equality and non-discrimination in Europe: the shortcomings of Article 14 of the European Convention on Human Rights and the new Protocol 12”, Annuaire international des droits de l’homme , vol. 7, 2012-2013, 824.