Gay Rights: Do International Courts Affect Domestic Policies?

What is the future of gay rights in Europe? Many countries have made great strides towards equality in recent years, while in other nations opposition seems as strong as it has ever been. International organizations in Europe generally promote gay rights in their member states, but are sovereign nations actually influenced by the opinions of outside entities? In “International Courts as Agents of Legal Change: Evidence from LGBT Rights in Europe” Laurence Helfer and Erik Voeten evaluate this question by examining the influence that rulings by the European Court of Human Rights (ECtHR), the legal body for the Council of Europe (CoE), have on member states’ policies concerning lesbian, gay, bisexual, and transgendered (LGBT) individuals.

The rulings of the ECtHR are not, in practice, binding since the Court’s rulings are imposed on sovereign states. However, the authors posit that there are certain mechanisms through which the ECtHR has power. A ruling against a state may prompt other states to change their policy so they are not targeted in the future, the authors argue. Furthermore, the legal opinions rendered by the Court may be persuasive to national judges and affect their rulings on domestic policy. Finally, the Court’s rulings set the agenda for policy debate; when there has been a ruling on an issue it prompts discussion that may lead to policy change.

Based on these arguments, the authors hypothesize that ECtHR rulings on gay rights may, at least in some cases, affect domestic policy. To test this hypothesis, they codify all of the court’s rulings over the past 60 years on five key LGBT issues: decriminalization of same-sex conduct, equalizing the age of consent for gay and straight individuals, allowing homosexuals to serve in the military, and allowing transgendered individuals to officially change their gender and to marry persons of the opposite biological sex. They also use a number of sources to build a data set of LGBT policies in the 47 CoE member countries.

The authors use these data to conduct a series of logit regressions to determine the relationship between international rulings and domestic policies. The regressions control for other factors that could influence domestic policy, like public opinion on LGBT issues. They also include data on domestic policies surrounding LGBT issues that were not ruled on by the ECtHR, like rules on anti-gay hate speech and gay adoption. This allows them to isolate the effects of the rulings themselves.

The authors find that on average a pro-LGBT ECtHR ruling increases the chances that a country will adopt a pro-LGBT policy by 14 percentage points in any given year. This correlation holds true for all CoE member countries, not just the specific country that was the target of the ruling. Furthermore, the rulings seem to have an effect even when the public is generally averse to LGBT rights. However, if the government is very conservative, religious, or nationalistic, an ECtHR ruling has no effect on LGBT policy. Thus, the regression suggests that ECtHR rulings can affect policy change, but only with a flexible, responsive government.

The authors do acknowledge some limitations to their conclusions. They point out that the ECtHR often cites social trends in its rulings, suggesting that the regression may have an issue with endogeneity. Furthermore, many of the member states are also members of the European Union (EU), which has its own LGBT policies. Member states’ responses to EU policies may be confounding the regression results. However, the authors still believe that the results are significant and that they have implications for the relationship between international organizations and their member states.

Feature Photo: cc/Tim Hamilton