An overnight success a decade in the making
| DOI | 10.1177/1358229118760873 |
| Date | 01 March 2018 |
| Published date | 01 March 2018 |
| Subject Matter | Articles |
Article
An overnight success a
decade in the making:
Indirect discrimination
on the grounds of sexual
orientation
Giulia Dondoli
Abstract
On 30 June 2016, the European Court of Human Rights (hereafter ‘European Court’)
decided that a binational same-sex couple was discriminated against because they were
not allowed to marry; and at the same time, they were unable to live in Italy as a couple.
For nearly one decade, human rights non-governmental organizations (NGOs) have
submitted third-party interventions asking the European Court to recognize that
unmarried same-sex couples should be treated differently from unmarried different sex
couples when the first have no possibility of marrying. This article argues that the
European Court has finally accepted what the NGOs have suggested since 2007, and that
the decision in Taddeucci and McCall v. Italy signals a positive step forward from the
‘analogous situation’ doctrine towards recognizing indirect discrimination on the
grounds of sexual orientation for same-sex couples.
Keywords
European Court of Human Rights, same-sex cou ples, indirect discrimination, LGBT,
human rights, NGOs, advocacy
Te Piringa – Faculty of Law, University of Waikato, Hamilton, New Zealand
Corresponding author:
Giulia Dondoli, Te Piringa – Faculty of Law, University of Waikato, Hamilton, New Zealand.
Email: giulia.dondoli.nz@gmail.com
International Journalof
Discrimination and theLaw
2018, Vol. 18(1) 5–21
ªThe Author(s) 2018
Reprints and permission:
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DOI: 10.1177/1358229118760873
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Introduction
On 5 June 2016, the Italian Parliament passed Law 76/2016 Regolamentazione delle
unioni civili tra persone dello stesso sesso e disciplina delle convivenze (Rule for civil
unions among persons of the same sex and de facto couples).
1
Such a law makes Italy the
last Western democracy to provide same-sex couples with some forms of legal recog-
nition.
2
Before Law 76/2016, same-sex couples complained of violations of their human
rights before the European Court of Human Rights (hereafter ‘European Court’). Two of
these applicants were Taddeucci and McCall, a same-sex couple , gay men, the first
Italian and the second New Zealander. The two men were prevented from living together
in Italy because the Italian government did not allow them to marry and did not recog-
nize their relationship for immigration purposes. On 30 June 2016, the European Court
issued a ground-breaking decision on unmarried same-sex couples in Taddeucci and
McCall v. Italy (‘Taddeucci and McCall’), in acknowledging for the first time that an
unmarried same-sex couple is discriminated against when not allowed to attain rights
and benefits attached to marriage.
This article discusses that a number of non-governmental organizations (NGOs)
pressured the European Court to recognize indirect discrimination on the grounds of
sexual orientation suffered by same-sex couples, for nearly one decade. It is important to
acknowledge here that it is not possible to find a clear cause–effect connection between
the NGO advocacy and the European Court decision. This is because NGOs’ advocacy
often happens informally over numerous conversations between activists, international
organizations’ functionaries and governmental delegates. Moreover, the European
Court’s decision-making is determined by the combination of many factors, some of
which are addressed in this article, and the NGOs’ advocacy is only one part of the
process. Nonetheless, the article aims to advance that NGOs have had an important role
in framing and conceptualizin g how the indirect discriminat ion principle applies to
same-sex couples.
In doing so, thearticle is structured as follows.First, the article discussesthe prohibition
of discrimination on the grounds of sexual orientation, and it briefly outlines that the
doctrine of indirect discrimination started consolidating in the 2000s. Second, the article
introduces the theme of NGO advocacy at the European Court, and at the Council of
Europe (CoE), in highlighting the importance of European Court’s adjudications in shap-
ing the political and social debate in Europe and the role of NGOs in influencing its
decision-making process. Third, the article discusses the third-party interventions sent
by numerous NGOs in occasion of six cases dealing with same-sex couples’ rights, and
it shows that NGOs spent a great deal of attention to frame same-sex couples’ issues in a
way that European Court could accept. Finally, the article discusses some possible impli-
cations of the evolution of the indirect discrimination principle for same-sex couples.
The prohibition of discrimination on the grounds of sexual
orientation
As McGoldrick correctly points out, among the various regional and international sys-
tems of human rights protections, the developments of the prohibition of discrimination
6International Journal of Discrimination and the Law 18(1)
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