Book Review: Homosexuality and the European Court of Human Rights
| Published date | 01 June 2014 |
| Date | 01 June 2014 |
| Author | Flora Renz |
| DOI | 10.1177/0964663914523201 |
| Subject Matter | Book Reviews |
Book Reviews
PAUL JOHNSON, Homosexuality and the European Court of Human Rights. London: Routledge,
2013, pp. xviii þ251, ISBN 9780415696579, £80 (hbk).
Over the last decade, the European Court of Human Rights (hereafter the Court) has
clearly played a fundamental role in advancing equality for lesbian, gay, bisexual and
transgender people; as such it is almost surprising that until now there has been no com-
parable book length summary of the Court’s decisions in this area. Paul Johnson begins
his impressively thorough book by setting out three clear aims – to provide a complete
overview of cases dealing with homosexuality (he specifically excludes bisexuality,
transsexuality and intersexuality from the scope of his analysis), to offer a sociological
instead of a purely doctrinal analysis of the Court’s decisions, and lastly, to make some
suggestions as to how the Court could be more effective in ‘protecting the rights and
lives of gay men and lesbians’ (p. 7). Johnson clearly meets all three aims, although the
last aspect by its very nature involves a degree of speculation and throws up a range of
further questions for the reader.
Part I (Chapters 1–2) of this book is a historical analysis of cases chronologically
divided around Dudgeon v UK which was the first successful case in the Court relating
to homosexuality, and it ‘inaugurated the homosexual of contemporary human rights
law’ (p. 51). Johnson argues that Dudgeon was foundational to all following cases due
to its essentialist construction of a ‘sexual personality’, which was clearly useful at the
time but also limits the development of further rights for gays and lesbians in the present
day. Using Foucault’s notion of discourse, he suggests that the struggle over who/what
the homosexual subject is, is clearly key to understanding all further judgements (p. 42).
However, when the court focuses only on the definition of homosexuality without attach-
ing moral value to it, this tends to construct homosexuality as inherently negative, pre-
sumably because it is always constructed as the ‘other’ not ‘normal’ behaviour in
opposition to heterosexuality (p. 59). Overall, his argument seems to be that essentialism
has some advantages over constructionist definitions of sexuality as it closely relates to
human rights discourses and the liberal framework into which the Court fits (p. 61). It is
interesting that he so clearly highlights the practical advantages of an essentialist
approach to sexuality in this context as current debates generally seem to be less in
favour of such an approach.
Using Michel Foucault’s theory of (homo)sexuality as discursively constructed in
the context of the Court’s jurisprudence allows Johnson to provide a detailed historical
analysis of how judgements do not just reflect normative moral values but also
Social & Legal Studies
2014, Vol. 23(2) 275–289
ªThe Author(s) 2014
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DOI: 10.1177/0964663914523201
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