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European Court of Human Rights Just Spit in the Face of 40% of the World's LGBT Population, AGAIN

30/06/2014 13:06 BST | Updated 29/08/2014 10:59 BST

On 26th June the European Court of Human Rights (the Court) laid down a judgment many were hoping would overturn a longstanding position that has, for decades, spit in the face of millions of LGBT people worldwide. The judgment in the case of M. E. v Sweden affirms the principle in their case law that LGBT people seeking asylum can be justifiably returned to their country of origin so long as they can avoid persecution or ill treatment by remaining 'discreet' about their sexual orientation or gender identity.

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The European Court of Human Rights building in Strasbourg. Source: Wikipedia

The facts of M. E. v Sweden revolve around a Libyan man currently living in Sweden. M.E. arrived in Sweden as an illegal migrant in 2010 and claimed asylum. In 2011 he married a man who has permanent residence in Sweden. The Swedish authorities rejected M.E.'s application for a residence permit, concluding that he can be returned to Sweden from where he could apply for family reunion with his spouse.

Libya currently makes all same-sex acts illegal, with maximum punishment of imprisonment for 5 years. M.E. argued that expelling him to Libya would violate his rights under Article 3 of the European Convention of Human Rights (the Convention) because as a homosexual he would be at risk of persecution and ill-treatment.

The most significant aspect of the judgment comes in their reasoning on Article 3 in which the Court said:

the present case does not concern a permanent expulsion of the applicant to his home country but only a temporary return while the Migration Board considers his application for family reunion [...] [E]ven if the applicant would have to be discreet about his private life during this time, it would not require him to conceal or suppress an important part of his identity permanently or for any longer period of time [...] [T]he Court finds no reason to believe that the applicant's sexual orientation would be exposed so as to put him at risk of treatment contrary to Article 3 (§ 88-89).

This is a simple affirmation of a principle that has been a part of the Court's body of jurisprudence since the early millennium. The issue with this is that it continues to spit in the face of an estimated 40% of the world's LGBT population that live in countries which criminalise homosexuality, and who may look to seek refuge in a more 'progressive' country. This principle of being 'discreet' about one's sexuality which may justify your return to a country that will throw you in prison for being gay is something that was overturned in the UK in 2010. The rejection of this principle is also endorsed by the European Court of Justice and the United Nations so why does the European Court of Human Rights persist in their stance?

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Even when living abroad some gay Africans fear being named and targeted back home. Source: Reuters

Some active opponents of LGBT rights in general may just ask "What's the big deal?" They will likely argue that if you can avoid persecution by just keeping your sexuality a secret, then where's the harm? But THAT is the harm. Living in a country that is actively hostile to your orientation or gender identity is something I cannot even begin to comprehend. As a gay man myself, I think about the time I was 'in the closet'. The anxiety I felt, the fear of being 'outed' at one time drove me to contemplating suicide, and this was in a country that is now largely accepting of LGBT people and I had a family that are fairly liberal too. Now I'm 'out', I look back on that time and laugh at how silly I was being, but imagine going through that anxiety in a country that threatens to have you either thrown in prison or executed merely for your sexual orientation?

The basic premise of human rights is that everyone is entitled to be treated fairly and equally and to be granted protection where they face a gross abuse of their rights. Some may argue that, in a world where genocide is still occurring, this issue is very low on the priority list of human rights issues. To a certain extent, they're probably right. But for every case the Court hears and rejects on this issue, there are probably thousands, if not millions, who are forced into living a life of fear and anxiety purely because the Court was too scared to take the right position that may have ultimately been considered "controversial" by anti-gay member states.

I am always open to defending the Court when they are unjustifiably attacked by the right-wing press, but this time they have failed millions. I am still hopeful we will one day see the Court take the right stance on this issue, but for now they are holding back progress for LGBT rights, not just in the territory of member states, but all around the world. A lot of countries will point to the recent decision and use it to reject LGBT rights in many areas, and that is something that makes me very sad.

To keep up to date on this issue and many other LGBT related cases before the European Court of Human Rights, keep an eye on the "ECHR Sexual Orientation Blog".

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