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social sciences

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European Commission on Human Rights / European Court of Human Rights  
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While gays won significant victories, the ECHR also handed defeats to the queer community.

British citizen Mark Rees had been born Brenda Margaret Rees in 1942. He began the process of a sex change in 1970, began to live as a male in 1971, and completed his sex change in 1974. Rees obtained a British passport under his male name in 1974, but the government refused to issue a corrected birth certificate. Britain argued that a certificate change would permit Rees to marry a woman, thereby legalizing same-sex marriage.

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The ECHR sent the case to the Court. On January 24, 1986, the Court declared that the right to marry in the Convention referred to the traditional marriage between persons of opposite biological sex. It ruled that Britain had the right to protect marriage as the basis of the family.

The End of the Commission

By the 1990s, the Commission struggled to deal with a dramatic increase in the volume of petitions. The Court's workload told a similar story, with the number of cases referred from the Commission increasing from 7 in 1981 to 119 in 1997.

To solve this problem, the Council of Europe abolished the Commission and the Court. It created a single, expanded, full-time European Court of Human Rights that came into operation on November 1, 1998. The Council permitted the Commission to continue to function until October 31, 1999 to deal with cases it had declared admissible before November 1998.

The ECHR served as a place of last resort for queers refused protection by their home countries. With its pioneering rulings, it enabled European gays and lesbians to enjoy the same liberties accorded to heterosexuals with the exception of the right to marry.

European Court of Human Rights

In 1999, the European Court of Human Rights handed the British glbtq community an important victory when it prohibited any member state from implementing bans on homosexuals in armed forces and struck down laws that allow gays to serve only if they kept their sexual orientation private.

The Court decision began with events in Great Britain. It was the only country in Europe that still expressly prohibited homosexuals from serving in its armed forces.

Duncan Lustig-Prean, a lieutenant commander in the British Royal Navy, reported an attempted blackmailing to the Military Police and found himself detained on suspicion of homosexuality. The blackmailer, well known to the police, was never prosecuted.

John Beckett, a weapons engineering mechanic in the Royal Navy, had an exemplary military record. Like Lustig-Prean, he also openly admitted his homosexuality. Naval authorities asked Beckett who was "butch" and who was "bitch" in his relationship with his partner.

Jeanette Smith, a nurse in the Royal Air Force, and Graeme Grady, a personnel administrator in the Royal Air Force, were also dismissed from military service because of their sexual orientations. Military authorities asked Smith whether she and her partner had a sexual relationship with their 16-year-old foster daughter.

After unsuccessful judicial review in British courts, in which they invoked English administrative law and European Community sex discrimination law, the four applicants took their cases to the Court.

They challenged both their discharges pursuant to the ban and the intrusive questioning to which they had been subjected. They argued that Britain had violated their right to private lives, guaranteed by Article 8 of the Convention on Human Rights. Additionally, all the applicants argued that they had been the subjects of discrimination, contrary to Article 14 of the Convention.

The Court found the investigations into the personal lives of the applicants to be "exceptionally intrusive." The investigations ensued after the applicants admitted their sexual orientation.

The British Ministry of Defense explained that it continued investigating because of an alleged need to verify admissions of homosexuality to prevent false claims by those who are seeking an easy way to be discharged administratively from the armed forces. The Court did not accept this argument since all the applicants wanted to remain in the military.

The Court next addressed the core argument of the British Government that the presence of homosexuals in the armed forces had substantial, negative impact on morale, fighting power, and operational effectiveness. It found that this argument rested "solely upon the negative attitudes of heterosexual personnel towards those of homosexual orientation." It also noted that the gay ban had no particular, moral critique of homosexuality and that the work performance of the applicants was never the subject of doubt.

The Court concluded that the negative attitudes by heterosexuals failed to justify discrimination toward homosexuals. It found Britain in violation of Article 8.

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