Eugenia Relaño Pastor is Assistant Professor in the School of Law, Complutense University, Madrid (Spain), and Cooperation Partner in the Department of Law and Anthropology at the Max Planck Institute for Social Anthropology, Halle (Germany). [1]
Europe is suffused with Christianity, or at least memories of its past influence.
—Andrew Higgins[2]
Those searching to have their gender legally recognized by the European Court of Human Rights (ECtHR or Strasbourg Court) and members of religious minorities who pursue equal rights and privileges enjoyed by dominant religious groups may not apparently share much in common. However, the following post sheds light on the similarities in the demands coming from gender and religious minorities. An initial examination unveils three common features shared by gender and religious minorities in searching for effective freedom: (1) the bias embedded in heteronormative laws and traditional church-state relations, (2) the experience of intersectional forms of discrimination, and (3) a self-determination approach to gender and religion.
Heteronormativity, Cisnormativity, and the “Multiple Tiers” of Church-State Relations
Extensive literature has conceptualized the term heteronormativity.[3] For instance, Oswald, Blume, and Marks define heteronormativity as a vast and pervasive system of privileging three composed binary composites: gender ideology, sexual ideology, and family ideology.[4] Heteronormativity has historically privileged cisgender men and women, heterosexuality, and nuclear families,[5] and these three binaries remain the primary means through which heteronormativity operates to constrain and privilege individuals today.[6]
In numerous judgments on the right to gender recognition, the Strasbourg Court has proved that heteronormativity is still engrained in legal systems despite gender recognition laws that allow individuals to change their legal gender and/or name. Indeed, many Council of Europe member states, as well as the European Court of Human Rights, have provided the possibility of changing one’s legal gender, for example, in Rees v. The United Kingdom (1986), B. v. France (1992), Christine Goodwin v. The United Kingdom (2002), and Hämäläinen v. Finland (2014).
However, these cases show a conceptualization of normative genders akin to cisnormativity where the focus relies on the applicant’s body appearance for establishing her or his right to gender recognition. The Strasbourg Court built its jurisprudence on the common assumption that the appearance of a person´s genitals determines a person’s legal gender, which is an example of “genitocentrism.”[7] Notably, in Goodwin, where the applicant had undertaken gender affirmation treatment, the ECtHR reasoned that once Goodwin changed her legal gender, marrying a person legally recognized as a man would no longer constitute a homosexual marriage. Therefore, marriage must be permitted by the law. In later cases such as A.P., Garçon and Nicot v. France (2017) and X and Y v. Romania (2021), the Strasbourg Court overcame “genitocentrism” and outlawed the requirement to undergo gender affirmation treatment as a precondition for gender recognition in the Council of Europe member state, while still recognizing that there is a European consensus on “the requirement to obtain a prior psychiatric diagnosis prior to legal recognition of transgender identity.”[8]
Analogous to the hegemonic construct of heteronormativity that privileges the gender binary, the hegemonic construct of the definition of religion has impacted the legal recognition of minority religious groups. As Evans notes,
[T]he Court has addressed the definitional issue in a unique way, by beginning with a broad, inclusive definition, but then differentiating between religious beliefs qua beliefs, on the one hand, which are inviolable, and manifestations of belief on the other, which are entitled to far less protection.[9]
In other words, the Court rests on assumptions often around unarticulated cultural aspects of main “Western” theistic religions, according to which religion is a matter of privatized belief of an autonomous individual based on conscience and belief.[10]
The problem is that giving primacy to individual conscience and belief affects the scope of protection guaranteed by Article 9 of the European Convention of Human Rights, which seems to protect a Protestant, “belief-centered conception of religion that favors internal and disembodied forms of religion over external and embodied ones.”[11] Consequently, other religious traditions like Islam, in which the external and communal life in public life “deviate” from the hegemonic notion of religion, face a double charge: not only is the religious tradition a threat to the secular political order because it compromises the nature of “secularism” but it also is not a “modern” religion. For instance, the Court has endorsed a secularist move to relegate religion to the privacy of conscience in cases such as Leyla Şahin v. Turkey (2005), Sinan Isik v. Turkey (2010), Hassan Köse v. Turkey (2018), Dogru v. France (2009), and Kervanci v. France (2009). This kind of secularism places religion in the conscience of the individual. Additionally, the Court assumes the lesser importance of living out one’s religion or belief as reflected in Dahlab v. Switzerland (2001):
[E]ven if it is particularly important to the appellant and does not merely represent an expression of a particular religious belief but complies with an imperative requirement of that belief, the wearing of a headscarf and loose-fitting clothes remains an outward manifestation which, as such, is not part of the inviolable core of freedom of religion (para. 3, quoting the state’s federal court).
Another form of hegemonic construct that maintains a system of dominance over the free exercise of religious minorities’ rights is the decisive role of the margin of appreciation in Strasbourg jurisprudence on Article 9. The Strasbourg Court has acknowledged that “multiple tiers” of church-state relations and the three constitutional models governing church-state relations (state church, separation between the state and religious communities, and concordat-type relations) are compatible with Article 9 of the Convention and fall under the national margin of appreciation (İzzettin Doğan and Others v. Turkey (2016)). And the state’s duty of neutrality in religious matters cannot be conceived as being likely to diminish the role of a faith or a church with which the population of a specific country has historically and culturally been associated (Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia (2007)). Indeed, in some countries, the independence and unity of historically dominant majority church are matters of the utmost importance for society in general (Orthodox Ohrid Archdiocese (Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy) v. The Former Yugoslav Republic of Macedonia (2018) and Sindicatul “Păstorul Cel Bun” v. Romania (2013)), and minorities face structural and institutionalized obstacles to fully enjoy freedom of religion on an equal footing with dominant churches.[12] As a result, not only historically has the Court tended to allow significant space to dominant religion as an expression of cultural and national identity and as meriting a wide margin of appreciation[13] but the Court has also given a wide margin of appreciation to states when adjudicating a conflict between a religious community’s right to autonomy and the dissenter’s competing rights and has upheld the right of dominant religious majorities’ ethos over their individual members (Siebenhaar v. Germany (2011) and Fernández Martínez v. Spain (2014).[14]
Other cases, such as Lautsi v. Italy (2011) dress up Christianormativity in secular robes. In the final judgment, the Grand Chamber endorsed the Italian government’s defense, claiming that
the presence of the crucifix was the expression of a “national particularity”, characterised notably by close relations between the State, the people and Catholicism, attributable to the historical, cultural and territorial development of Italy and to a deeply rooted and long-standing attachment to the values of Catholicism (para. 36).
The Grand Chamber notes that the cross gives greater visibility to Christianity, as the crucifix is above all a religious symbol (para. 66), which, however, has not only religious connotation but also an “identity-linked” connotation (para. 67). Lautsi’s aftermath was discouraging for religious minorities. Fokas mentions a religious minority representative who, in discussing Lautsi, called the Court a “double-edge sword”: “you go there to expand your rights and you come back in a far weaker position.”[15]
Intersectional Discrimination
The black feminist and legal scholar Kimberle Crenshaw coined the term intersectionality to describe how individuals with multiple marginalized identities can experience multiple and unique forms of discrimination that cannot be conceptualized separately.[16] The notion of intersectionality has been a widely applied framework in addressing issues of discrimination ranging from gender, race, religion, gender identity, and sexual orientation to other identities. More than ten years ago, the Council of Europe recommended that member states tackle discrimination on multiple grounds experienced by lesbian, gay, bisexual, and transgender persons.
Despite the progress achieved over the last decade in discussing gender identity or expression, the 2022 first thematic implementation review report on the Council of Europe’s above-mentioned Recommendation notes that discrimination faced by transgender persons has been raised. In fact, according to the European Union Agency for Fundamental Rights (FRA) Report A Long Way to Go for LGBTI Equality the experience of discrimination by transgender respondents has increased between 2012 and 2019 in all areas of life surveyed. The results of the survey also unveil intersectional and multiple discrimination. For example, a lesbian woman may face discrimination both as a lesbian and as a woman. The survey allowed participants to select grounds in addition to LGBTI identity as grounds for their perceived discrimination. Forty percent of the respondents who self-identify as members of an ethnic minority or have an immigrant background and 36 percent who identify themselves as persons with disabilities indicated these grounds as additional ones for discrimination.
In the same vein, according to the FRA and the European Network Against Racism (ENAR), religious discrimination in Europe is a widespread problem, notably for Muslim women who suffer from intersectional discrimination on the ground of a combination of different identity markers (religion and ethnic origin). For instance, laws and policies that limit the wearing of religious and cultural symbols in the workplace and public spaces reinforce the institutional paradigm of intersectional religious discrimination. On 6 July 2022, the European Parliament issued the first resolution that acknowledges the systemic dimensions of intersectional inequality and reveals that discrimination based on religion, racial and ethnic origin, and gender/sexual identity is outspread.
Gender and Religion Self-Determination
As previously mentioned, heteronormativity privileges the gender binary hegemonic construct—men and women—over “deviants.” The Strasbourg Court shows how heteronormativity has expanded to include trans individuals at the “normative genders” pole of the gender binary.[17] However, due to constant changes in the legitimacy of using binary gender, an increasing number of Council of Europe states recognize nonbinary gender categories,[18] though not on an equal basis with a cis person’s gender identities.[19] Interestingly, the ECtHR has relied on applicants’ “right to self-determination” to have their gender legally recognized (AP, Garçon and Nicot v. France, para. 93). The self-determination model involves the depathologisation of legal gender recognition while also removing other forms of external validation or verification.[20]
Should states abstain from assigning gender to individuals from the perspective of negative state obligations? Suppose we transpose this argument to the self-determination of one’s beliefs. In that case, it can be observed that the Strasbourg Court has given leeway to individuals to define their religious beliefs. By relying on a Western, specifically European Protestant, understanding of religion as primarily a matter of belief as part of the patrimony of “European civilization,” the ECtHR has given a broad interpretation to the meaning of religious beliefs and protected all traditional religions and beliefs and nonreligious beliefs such as pacifism (Arrowsmith v. The United Kingdom (1977)), veganism (W v. The United Kingdom (1987)), and atheism (Angeleni v. Sweden (1986)). Following a “privatization” approach to religious beliefs, the Court has also protected religious and philosophical convictions or beliefs if they attain a certain level of cogency, seriousness, cohesion, and importance, as long as they “are not incompatible with human dignity,” do “not conflict with . . . fundamental rights,” and “relate to a weighty and substantial aspect of human life and behaviour” (Campbell and Cosans v. The United Kingdom (1982), para. 36).
Gender and religious minorities challenge hegemonic constructs upheld by the Strasbourg Court. When delivering judgments, the ECtHR has often relied on assumptions ingrained in social and cultural structures that privilege one group over others (binary gender over non-binary, Christian preeminence over minorities). Considering the European Convention as a living instrument, it is crucial to observe how the Court will adjust and circumscribe heteronormativity and Christianormativity to various social and political changes today. In other words, gender and religion as social constructs will test the boundaries of the right to private life (Article 8 of the European Convention on Human Rights) and freedom of religion (Article 9 of the Convention) and, probably, will show that neither gender nor religion is an unambiguous and stable concept.
[1] Released as the outcome of the National Research Project Forty Years after CEDAW: The Liquid Rights of Women?(PID2021-122788OB-I00).
[2] Andrew Higgins, A More Secular Europe, Divided by the Cross, N.Y. Times (17 June 2013).
[3] Tim Carrigan, Bob Connell & John Lee, Toward a New Sociology of Masculinity, 14(5) Theory & Soc’y 551 (1985); Katherine R. Allen, Feminist Theory in Family Studies: History, Reflection, and Critique, 8(2) J. Family Theory & Rev. 207 (2016); R.W. Connell, Masculinities (2d ed. 2005).
[4] Ramona Faith Oswald, Libby Balter Blume & Stephen Marks, Decentering Heteronormativity: A Model for Family Studies, in Sourcebook of Family Theory and Research 143 (Vern L. Bengtson et al. eds., 2005).
[5] Thinking Straight: The Power, the Promise, and the Paradox of Heterosexuality (Chrys Ingraham ed. 2005).
[6] Samuel H. Allen & Shawn N. Mendez, Hegemonic Heteronormativity: Toward a New Era of Queer Family Theory, 10(1) J. Family Theory & Rev. 70 (2018).
[7] Damian A. Gonzalez-Salzberg, Sexuality and Transsexuality Under the European Convention on Human Rights: A Queer Reading of Human Rights Law (2019).
[8] Lena Holzer, Legal Gender Recognition in Times of Change at the European Court of Human Rights, 23 ERA F. 165 (2022).
[9] Carolyn Evans, Religious Freedom in European Human Rights Law: The Search for a Guiding Conception, inReligion and International Law 385 (Mark W. Janis & Carolyn Evans eds., 2004).
[10] Eugenia Relaño Pastor, The European Court of Human Rights: Fundamental
Assumptions that Have a Chilling Effect on the Protection of Religious Diversity, in Public Commissions on Cultural and Religious Diversity: National Narratives, Multiple Identities and Minorities 266 (Katayoun Alidadi & Marie-Claire Foblets eds., 2018).
[11] Lourdes Peroni, On Religious and Cultural Equality in European Human Rights Convention Law, 32(3) Neth. Q. Hum. Rts. 231 (2014).
[12] Eugenia Relaño Pastor, Recognizing Religious Minority Rights: A Key Tool to Managing Pluralism in the European Court of Human Rights, in 18(1) Eur. Y.B. Minority Issues 3 (2021).
[13] Effie Fokas, The Legal Status of Religious Minorities: Exploring the Impact of the European Court of Human Rights, 65(1) Soc. Compass 25 (2018).
[14] Relaño Pastor, supra note 12.
[15] Fokas, supra note 13.
[16] Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, U. Chi. Legal F. 139 (1989).
[17] Allen & Mendez, supra note 6.
[18] Belgium: Legal Gender Recognition Act (2018); Iceland: Act on Gender Autonomy (2019); Ireland: Gender Recognition Act (2015); Malta: Gender Identity, Expression and Sex Characteristic Act (2015); etc.
[19] Holzer, supra note 8.
[20] Caroline Hansen, Dismantling or Perpetuating Gender Stereotypes. The Case of Trans Rights in the European Court of Human Rights’ Jurisprudence, 18 Age Hum. Rts. J. 143 (2022).