Sexual Orientation Discrimination and Article 3 of the European Convention on Human Rights: Developing the Protection of Sexual Minorities

In 2012, the European Court of Human Rights held, for the first time, that the discriminatory treatment of an individual on the grounds of his sexual orientation amounted to a violation of Article 3, alone and in conjunction with Article 14, of the European Convention on Human Rights. This judgment is highly significant given that individuals in Europe have been arguing since 1959 that forms of ill-treatment based on sexual orientation amount to a violation of Article 3 of the Convention. In this article we provide a critical analysis of the evolution of the Court’s Article 3 jurisprudence in order to assess the ways in which this has developed the protection of sexual minorities in Europe. We identify major gaps in this protection, most notably in respect of asylum, and argue that the Court’s Article 3 jurisprudence should be further evolved to address these. Using the example of same-sex marriage, we conclude with a consideration of how sexual minorities might better and more creatively use Article 3 in the future to address discrimination against them.