134.
In this regard, the expert Wintemute stated that:
“as the case law of the European Court makes clear, sexual orientation also includes conduct. This means
that protection against discrimination based on sexual orientation is not only about less favourable
treatment for being lesbian or gay. It also covers discrimination because an individual acts on their sexual
orientation, by choosing to engage in consensual sexual activity in private, or to enter into a long-term
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couple relationship with a partner of the same sex.”
135. The scope of protection of the right to a private life has been interpreted in broad
terms by the international human rights courts, when stating that it goes far beyond the
right to privacy. According to the European Court of Human Rights, the right to a private life
encompasses physical and social identity, an individual’s personal development and
personal autonomy as well as their right to establish and develop relationships with other
people and their social environment, including the right to establish and maintain
relationships with people of the same sex 158. Moreover, the right to maintain personal
relationships with other individuals, in the context of the right to a private life, extends to
the public and professional spheres159.
intimate aspect of private life”). See also Case of Dudgeon v. United Kingdom, (No. 7525/76), Judgment of
October 22, 1981, para. 52; Case of A.D.T. v. United Kingdom, (No. 35765/97), Judgment of July 31, 2000. Final,
October 31, 2000, para. 23 (“the Court recalls that the mere existence of legislation prohibiting male homosexual
conduct in private may continuously and directly affect a person's private life”).
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Cf. expert testimony rendered by expert Robert Wintemute, September 16, 2011 (record of merits,
volume XI, pages 5360). He also stated that the Supreme Court of Canada in the Case of Egan v. Canada
established that “sexual orientation is more than simply a ´status` that an individual possesses: it is something
that is demonstrated in an individual’s conduct by the choice of a partner. Just as the [Canadian] Charter [of Rights
and Freedoms] protects religious beliefs and religious practice as aspects of religious freedom, so too should it be
recognized that sexual orientation encompasses aspects of ´status` and ´conduct` and that both should receive
protection”. Egan v. Canada, [1995] 2 SCR, 513, 518 (record of merits, volume XI, page 5360).
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Cf. ECHR, Case of Pretty V. United Kingdom (No. 2346/02), Judgment of April 29, 2002. Final, July 29,
2002, para. 61 (“the concept of [‘]private life[’] is a broad term not susceptible to exhaustive definition. It covers
the physical and psychological integrity of a person […]. It can sometimes embrace aspects of an individual's
physical and social identity […]. Elements such as, for example, gender identification, name and sexual orientation
and sexual life fall within the personal sphere protected by Article 8 […]. Article 8 also protects a right to personal
development, and the right to establish and develop relationships with other human beings and the outside world
[…]. Although no previous case has established as such any right to self-determination as being contained in Article
8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying
the interpretation of its guarantees”); Case of Schalk and Kopf v. Austria, (No. 30141/04), Judgment of June 24,
2010, November 22, 2010, para. 90 (“It is undisputed […] that the relationship of a same-sex couple like the
applicants' falls within the notion of [‘]private life[’] within the meaning of Article 8”); Case Dudgeon, supra note
¡Error! Marcador no definido., para. 41 (“the maintenance in force of the impugned legislation constitutes a
continuing interference with the applicant’s right to respect for his private life (which includes his sexual life) within
the meaning of Article 8 par. 1”); Case Burghartz v. Switzerland, (No. 16213/90), Judgment of February 22, 1994,
para. 24, and Case Laskey, Jaggard and Brown, supra note ¡Error! Marcador no definido., para. 36.
159
Cf. ECHR, Case Peck V. United Kingdom, (No. 44647/98), Judgment of January 28, 2003. Final, April 28,
2003, para. 57 (“Private life is a broad term not susceptible to exhaustive definition. The Court has already held
that elements such as gender identification, name, sexual orientation and sexual life are important elements of the
personal sphere protected by Article 8. That Article also protects a right to identity and personal development, and
the right to establish and develop relationships with other human beings and the outside world and it may include
activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others,
even in a public context, which may fall within the scope of [‘]private life[’]”), citing ECHR, Case P.G. and J.H. v.
United Kingdom (No. 44787/98), Judgment of September 25, 2001. Final, December 25, 2001, para. 56. Cf. ECHR,
Case Niemietz v. Germany, (No. 13710/88), Judgment of December 16, 1992, para. 29 (“The Court does not
consider it possible or necessary to attempt an exhaustive definition of the notion of [‘]private life[’]. However, it
would be too restrictive to limit the notion to an [‘]inner circle[’] in which the individual may live his own personal
life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect
for private life must also comprise to a certain degree the right to establish and develop relationships with other
human beings. There appears, furthermore, to be no reason of principle why this understanding of the notion of
[‘]private life[’] should be taken to exclude activities of a professional or business nature since it is, after all, in the
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