Introduction
This article analyzes the evolution of the perception of homosexuality in European human rights law, focusing on the case law of the European Court of Human Rights (ECHR). Initially treated as a moral deviation, homosexuality has gradually gained the status of a protected element of identity. The author argues that this essentialization of identity is dual in nature: it enables emancipation while simultaneously confining the individual within rigid frameworks. The analysis reveals a structural aporia of the law, which, while protecting minorities, also limits their rights through heteronormative assumptions. Readers will learn how case law shapes standards of family life and the challenges posed by algorithms and market-based arguments.
Evolution of Status: From Criminalizing Acts to Protecting Identity
Until the 1980s, Strasbourg authorities viewed homosexuality as deviant behavior that states could punish in the name of "protecting morality." The landmark ruling in Dudgeon v. the United Kingdom marked a turning point. The Court recognized the criminalization of intimate contact as a violation of the right to privacy, achieving an ontological breakthrough. The homosexual person ceased to be a "carrier of an act" and became a "subject of human rights" deserving of protection because of who they are.
This shift is based on essentialization—the recognition of orientation as an immutable core of personality. It is a double-edged sword: on one hand, it allows for the rejection of state paternalism; on the other, it locks identity into a rigid corset that fits poorly with fluid queer concepts. Indeed, any framing of identity as "something one has" becomes a potential tool for normalization.
Structural Aporia and the Mechanism of the Closet
European human rights law suffers from an internal contradiction. To provide protection, the system must construct a subject, only to then limit its scope by appealing to traditional assumptions. The concept of the right to privacy (Article 8 of the Convention) paradoxically reinforces the mechanism of the closet. The law seems to say: we will defend your intimacy as long as you remain invisible in the public sphere. This is conditional protection, the price of which is silence.
The doctrines of the margin of appreciation and European consensus often hinder progressive interpretation. The Court, citing a lack of consensus among states, legitimizes discrimination in the area of marriage. However, the ruling in Fedotova v. Russia shifts the paradigm: states now have a positive obligation to institutionalize same-sex unions. Nevertheless, marriage remains a tool for the reproduction of structural inequalities, operating on the principle of path dependence—historical heterosexual privileges determine today's economic barriers.
Algorithms, the Market, and Global Models
Protection paradigms vary globally: Europe focuses on universalism and the margin of appreciation, the US on confrontational constitutionalization, and the Arab world often maintains criminalization supported by social pressure. A new challenge is the algorithmic management of visibility. AI systems, trained on biased data, often flag minority content as "inappropriate." This is particularly dangerous in asylum procedures, where technology can radicalize the requirement for "authenticity" at the expense of individual safety.
In parallel, the business case argument emerges—inclusion as a factor for GDP growth. It is ethically ambivalent, as it reduces the human being to the role of a "resource." For the law to be effective, it must become post-heteronormative. This means protecting the individual in three dimensions: objective (distribution of goods), social (civil status), and subjective (self-understanding). Freedom of speech and the prohibition of discrimination must also encompass the "black boxes" of digital platform algorithms.
Summary
The European Court of Human Rights, navigating between universal aspirations and local contexts, constantly redefines the boundaries of tolerance. In this legal game of adaptation, will it be possible to create space for authentic recognition, or will homosexuality remain merely a legal construct, destined to eternally balance on the edge of acceptance? The question is whether the law can outpace prejudice or if it will always be merely its belated echo.
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