European Journal of International Law, 14(5):1023-1044, 2003.
Shifting from an essentialist to a constructionist perspective on sexual identities, I move from a consideration of the homosexual legal subject, as presently treated under the European Convention on Human Rights, to the elaboration of a universal sexual legal subject. The universal sexual legal subject enjoys two basic rights: the right to choose sexual activity and sexual identity and the right to establish relationships and families in accordance with this choice. The possibility of including these two rights within the Convention presupposes their insertion into a set of sexually neutral standards which grant the universal sexual legal subject equality of choices. By examining the case law of the European Court and Commission of Human Rights on decriminalization of same-sex sexual activity, and family and relationship issues, I question the sexual particularity of the construction of the homosexual legal subject. This analysis of the case law provides the legal material and principles around which the insertion of the two sexual rights into the Convention is discussed. Both sexual rights are located within the right to respect for private and family life (Article 8). Equality of choices can only be guaranteed if the right to marry and found a family (Article12) is erased and marriage is ‘privatised’ into Article 8 on an equal footing with other sexual and relational choices.