Rejecting asymmetry of access to formal relationship statuses for same and different-sex couples at Strasbourg and domestically.

Abstract

This article interrogates the extent to which the formal recognition and protection of same and different-sex relationships at Strasbourg and in domestic courts has been accepted as attracting human rights protection. In order to do so it considers how far equality of access to formalised relationship statuses as between same and different-sex couples has arisen in the ECHR contracting states. Inequality of access—asymmetry of access—arises, it will be argued, in its most obvious and pernicious form in those Eastern contracting states in which different-sex couples who wish to live together can access one of two options: cohabitation or marriage, while same-sex couples are confined to cohabitation only. But a form of asymmetry also arises in states which have introduced registered partnerships for same-sex couples, leaving availability of marriage only to different-sex ones. Other forms of asymmetry of access are also explored. This article argues for taking further steps towards creation of symmetry of access to formal relationship statuses in Member States on human rights grounds, but also pragmatically, in order to strengthen the consensus in the contracting states on this matter, and therefore place the Strasbourg Court more clearly at the forefront of addressing the inequalities thereby arising, where Member States have so far failed to do so.