Article 32. Relationship between Duties and Rights
1. Every person has responsibilities to his family, his community and mankind.
2. The rights of each person are limited by the rights of others, by the security of all, and by the just
demands of the general welfare, in a democratic society.
3.
The European Convention for the protection of human rights and fundamental
freedoms contains two provisions that are relevant in this respect, corresponding to Articles
11 and 17.2 of the American Convention:
Article 8 — Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the interests of national security, public
safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others.
Article 12 — Right to marry
Men and women of marriageable age have the right to marry and to found a family, according to the
national laws governing the exercise of this right.
4.
Therefore, the case law of the European Court of Human Rights (ECHR), which the
judgment cites appropriately and with persuasive value, refers to the provisions of the
European Convention that correspond to Articles 11.2 and 17.2 of the American
Convention1, since there are no provisions referring to the matters contemplated in
paragraphs 1, 3, 4 and 5 of Article 17.
5.
It is of particular importance to examine judgments in which the ECHR considered
cases involving cohabiting couples of the same sex or gender2 in light of Article 8 of the
European Convention, and in relation to Article 14. As the judgment of this Court clearly
states in paragraph 174:
1
In cases similar to this one, the rule that prohibits discrimination is also invoked, which states the
following: Article 14 — Prohibition of discrimination - the enjoyment of the rights and freedoms set forth in the
Convention shall be secured without discrimination on any ground, such as sex, race, color, language, religion,
political or other opinion, national or social origin, association with a national minority, property, birth or other
status.
2
Perhaps it would have been appropriate to also cite the judgment in the case P. V. v. Spain (application N°
35159/09), delivered on November 30, 2010 and made final on April 11, 2011. In this case, the applicant is a
male-to-female transsexual who had previously been married to P.Q.F., with whom she had a son in 1998. When
the couple was legally separated, the judge approved an agreement concluded between the spouses whereby the
custody of the child was awarded to the mother and parental responsibility to both parents jointly. In addition, the
agreement established contact arrangements for the father to spend time with the child. Two years later, the
mother applied to have her ex-spouse deprived of parental responsibility and to have the contact arrangements
and any communication between father and son suspended. She argued that the father had shown a lack of
interest in the child, and was undergoing hormonal treatment with a view to gender reassignment and usually wore
make-up and dressed as a woman. The domestic court dismissed the mother’s application in respect of the first
point and, as regards the contact arrangements, the judge decided to restrict the visits, which were later gradually
extended. The court’s decision, in relation to the facts, was based on a psychological report, according to which P.
was experiencing “emotional instability” that “entailed a real and significant risk of disturbing the emotional wellbeing and development of the child’s personality, in view of his age (he was six years old at the time of the expert
report) and the stage of development at the time; and, as regards the law, on the best interests of the child. It was
not based on the father’s status as a transsexual. The ECHR considered that the Spanish courts, unlike the ruling in
the case of Salgueiro da Silva Mouta v. Portugal, had not based their decision on the applicant’s sexual orientation,
but had taken into account her “emotional instability” and had given priority to “the interests of the child,” adopting
more restrictive contact arrangements to enable the child to become gradually accustomed to his father’s gender
change, and had subsequently extended these arrangements despite the fact that “the applicant’s sexual status
remained the same.”
2