CHAPTER I:

Sexuality, Personality, and the Right to Respect for Private Life

Introduction
Our brief survey inspired by the question How non-heterosexuals are protected 1
as subjects before European human rights law? will try to cast doubt on one of the main
(liberal?) assumptions of the European Convention of Human Rights. As some authors
already observed, the system of protection of human rights under ECHR is deeply
motivated by the public/private distinction given that the Convention, generally
speaking, specifies a series of mostly negative or blocking rights, inter alia, designed
to block public interference with the citizens private domain 2
In the question How non-heterosexuals are protected as subjects before
European human rights law? the expression subject before the law is not chosen
unintentionally. As Judith Butler pointed out, when interpreted in temporal sense,
before becomes the foundational premise that guarantees a presocial ontology of
persons who freely consent to be governed and, thereby, constitute the legitimacy of the
social contract.3 However, even when we consider here, in passing, whether juridical
protection of non/heterosexuals depends on the liberal view of the non-sexual self as
prior to its socially given roles and relationships 4, our modest analysis will not try to
reach deep philosophical conclusions concerning basic liberal assumptions - presumed
social contract and state of nature hypothesis conclusions, that would have such
undermining effect on the juridical structures of classical liberalism.
Instead, we will just try to clarify the concept of privacy, presupposed in right
to privacy, as interpreted by the organs of human rights Conventions in the cases
dealing with sexuality, by implicitly or explicitly assuming certain construal of the
public/private distinction.
To start with, the right to privacy was initially affirmed in the Article 12 5 of UDHR
and subsequently confirmed in the Article 176 of International Covenant on Civil and
Political Rights. Although ICCPR commentators are still trying to find a compromise
definition7 of the right to privacy, the practice of interpretation already recognized
Juridical notions of power appear to regulate political life in purely negative terms
that is, through the limitation, prohibition, regulation, control, and even protection of
individuals related to that political structure through the contingent and retractable
operation of choice. Butler, Judith. Gender Trouble: Feminism and Subversion of
Identity. New York: Routledge, 1999, p. 4.
2
Forsythe, David P. Human Rights in International Relations. Cambridge: Cambridge
University Press, 2000, p. 111.
3
Butler, Judith. Gender Trouble: Feminism and Subversion of Identity. New York:
Routledge, 1999, p. 5. Butler also believes that The prevailing assumption of the
ontological integrity of the subject before the law might be understood as the
contemporary trace of the state of nature hypothesis, that foundationalist fable
constitutive of the juridical structures of classical liberalism. Ibid.
4
On the liberal view of the self, individuals are considered free to question their
participation in existing social practices, and opt out of them, should those practices
seem no longer worth pursuing. As a result, individuals are not defined by their
membership in any particular economic, religious, sexual, or recreational relationship,
since they are free to question and reject any particular relationship Kymlicka, Will.
Contemporary Political Philosophy: An Introduction. Second Edition. Oxford University
Press, 2002, p. 221.
5
UDHR, Article 12: No one shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, nor to attacks upon his honour and reputation.
Everyone has the right to the protection of the law against such interference or attacks.
6
ICCPR, Article 17:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or
attacks.
7
See The International Covenant On Civil and Political Rights : Cases, Materials, and
Commentary
1

several specific aspects of privacy: family and home, correspondence, searches, honour
and reputation, data protection and, what is the most important for us here, sexual
privacy. The commentators already indicated that previous practices of interpretation
revealed that the article 17 guarantees rights of autonomy over one's own body,
prohibits interferences with privacy which are 'unlawful' and 'arbitrary', allows
expression of personal identity8 and, yet, according to one minority opinion, protects
the 'right to be different and live accordingly'.9
Before turning to far more reach and progressing ECHR case law, we will see
how sexuality is conceived in the context of public/private distinction (section 1), and
how is treated as interconnected with personality and privacy (in section 2). After the
historical presentation of the four stages of protection of the right to respect for private
life under ECHR, the concept of privacy will be reconsidered in light of the feminist
criticism of the liberal conceptions of public/private distinction.
1. Sexuality Public/Private
The public/private distinction is justifiably considered as one of the basic
assumptions of liberalism10 and many critics of liberalism think that it is deeply
embedded not only in the political theory but also in the political practice of modern
liberal democracies11.
In spite of the importance of the dichotomy (or dichotomies), according to
Habermas, The usage of the words "public" and "public sphere" betrays a multiplicity of
concurrent meanings.12 Bearing in mind the interdependence of the members of a
dichotomy, we can say that the words "public" and "public sphere", all their multiplicity
aside, acquire their meanings due to their opposition with the words private and
private sphere.13 However, the social processes of restructuration often produce an
inflation of the stable meanings, or even questioning of the dichotomy itself. Habermas,
ed. by Joseph, Sarah.; Schultz, Jenny.; Castan, Melissa. New York: Oxford University
Press (UK), 2000, pp. 348-349: A compromise definition could be that a right to privacy
comprises 'freedom from unwarranted / and unreasonable intrusions into activities that
society recognises as belonging to the realm of individual autonomy'. The 'sphere of
individual autonomy' has been described as 'the field of action [that] does not touch
upon the liberty of others', where one may withdraw from others, to 'shape one's life
according to one's own (egocentric) wishes and expectations'.
8
Cf. COERIEL and AURIK v THE NETHERLANDS (453/91): The Committee considers
that the notion of privacy refers to the sphere of a person's life in which he or she can
freely express his or her identity, be it by entering into relationships with others or
alone.
9
Cf: The International Covenant On Civil and Political Rights : Cases, Materials, and
Commentary ed. by Joseph, Sarah.; Schultz, Jenny.; Castan, Melissa. New York: Oxford
University Press (UK), 2000, p. 365-366: Regulation of sexual behaviour that takes place
in private may be an interference with privacy. In this regard, one may note the minority
opinion in / Hertzberg et al. v Finland (61/79), when it was stated that article 17 protects
the 'right to be different and live accordingly'. Sexual regulation may relate to the sexual
regulation of heterosexuals, homosexuals, paedophiles, prostitutes, pornographers, and
sado-masochists.
10
According to Bird, it is the archetypical liberal concern to define a private sphere of
conduct insulated from public interference, an area within which citizens of a liberal
order are free to think and act as they wish. Bird, Colin. The Myth of Liberal
Individualism. Cambridge; New York: Cambridge University Press, 1999, p. 32.
Furthermore, The idea of a centreless private sphere, bounded only by external limits
imposed by nature, or by rights specifying similar liberties for others, has been a
recurring theme in liberal individualist thought. Ibid.
11
See Duncan, Nancy. Renegotiating Gender and Sexuality in Public and Private
Spaces in BodySpace: Destabilizing Geographies of Gender and Sexuality ed. By Nancy
Duncan. London and New York: Routledge, 1996, pp. 127-145. p.127: The distinction
between the public and the private is deeply rooted in political philosophy, law, popular
discourse and recurrent spatial structuring practices.
12
Habermas, Jrgen. The Structural Transformation of the Public Sphere. An Inquiry
into a Category of Bourgeois Society. Cambridge, Massachusetts: MIT Press, 1989, p. 1.

for example, speaks about the tendency toward a mutual infiltration of public and
private spheres and, in the context of the polarization of the social sphere and the
intimate sphere, about the tendency toward the destruction of the relationship
between public and private spheres. 14 As indicated by Habermas, the transformation of
the rights of the subjects into human rights and civil rights (into basic liberal and
political rights of citizens) cannot be explained without reference to the concept of
private autonomy.15
It is not only a theoretical, but one of the most ordinary assumptions of our
culture, that sexuality is (and should be) confined to private spaces. In this chapter, we
are witnesses how this folk-psychological assumption is theoretically supported, in
general, and in human rights discourse, in particular, and how it is institutionally
supported by the most advanced instruments for the protection of human rights, as well.
According to Giddens, emergence of the modern conception of sexuality is related
with the process of the privatization of passion 16: Sexuality, in the modern sense, was
invented when sexual behaviour went behind the scenes. 17 Such a removal of sexuality
behind the scenes required social recognition of the zone of privacy which, as one
author observed, was recognized not for intimate associations, or control over ones
body, or for sexuality in general, but only for the domestic space of heterosexuals. 18
Michel Foucault vividly portrayed the quiet imprisonment of sexuality into the home of
procreative couple:
Sexuality was carefully confined; it moved into the home. The conjugal family
took castody of it and absorbed it into the serious function of reproduction. On
the subject of sex, silence became the rule. The legitimate and procreative couple
laid down the law. The couple imposed itself as a model, enforced the norm,
safeguarded the truth, and reserved the right to speak while retaining the
principle of secrecy. A single locus of sexuality was acknowledged in social space
as well as at the heart of every household, but it was a utilitarian and fertile one:
the parents bedroom.19
The demarcation of the private domain was always a matter of controversy. While
the efforts for explaining the private in contrast with the public are general trend,
of the greatest importance is in which sense the public is regarded. Therefore, if
public is regarded in its spatial sense, then we will arrive at the physical sense of
private.20 If public is considered in its decisional sense, then we will come to the

See ibid. p. 2: The public sphere itself appears as a specific domainthe public
domain versus the private.
14
Ibid., p. 158.
15
See Habermas, Jurgen. The Inclusion of the Other : Studies in Political Theory Studies
in Contemporary German Social Thought. Cambridge, Mass. MIT Press, 1998, p. 112.
16
Giddens, Anthony. Modernity and Self-Identity: Self and Society in the Late Modern
Age. Polity Press, 1991, p. 205: Passion has become privatised; yet its implications and
resonances are far from private. Sexuality has become one main element of the striving
for intimacy, but it addresses problems and stimulates feelings which are not restricted
to a personal relation between two human beings. In intimate sexual relationships,
people today frequently find their greatest moral satisfaction in life.
17
Ibid., p. 164.
18
Warner, Michael. Zones of Privacy in Whats Left of Theory ed. by Judith Butler, John
Guillory and Kendall Thomas. New York: Routledge, 2000, p. 94. (pp. 75-113)
19
Foucault, Michel. The Will to Knowledge: The History of Sexuality: Volume One.
London: Penguin Books, 1978, p. 3.
20
See, for example, Feminism, the Public and the Private, ed. by Landes, Joan B. Oxford;
New York: Oxford University Press (UK), 1998, pp. 1-2: The term 'public' suggests the
opposite of 'private': that which pertains to the people as a whole, the community, the
common good, things open to sight, and those things that are accessible and shared by
all. Conversely, 'the private' signifies something closed and exclusive, as in the
admonition 'Private propertyno trespassing'.
13

decisional sense of private.21 In addition to physical and decisional privacy, the law
incorporates protection for informational privacy too.22
If we take into account the feminist perspectives, the public/private dichotomy is
gendered23 and includes political24 dimension as well. Respecting feminist attempts for
confronting the public/private distinction as a barrier to effective international action
against gender-based violence25, I hope that the brief analysis of the protection of nonheterosexuals in the procrustean bed of the right to respect for private life, will help
us to conclude that certain interpretations of the public/private distinction are barriers
to effective international action against sexuality-based violence too.
However, there are also other attempts for undermining of the folk-psychological
assumption that sexuality was (and should be) confined to private spaces. Thus,
according to Nye,
there is a sense in which sexuality has always been a public phenomenon;
public authorities have attempted, so far as possible, to regulate sexual and
reproductive behaviour in the general interest. Such efforts continue to this day.
What seems new in the late twentieth century is the incorporation of sexual
tastes and dispositions into private behaviour that stand as the foundations of a
new kind of personal identity.26
Those who take for granted that sexuality should not be confined to private
spaces often apply deconstructive spatial tactics 27. It is worth to be mentioned that
See, for example, Nagel, Thomas. Personal Rights and Public Space in Deliberative
Democracy and Human Rights ed. by Koh, Harold Hongju. New Haven, Conn.: Yale
University Press, 1999. p. 37: The private domain includes the realm of choices of
personal pleasures, sexual fantasy, nonpolitical self-expression, and the search for
cosmic or religious meaning. But of course the privacy of these matters is precisely what
is at issue: it is only because some individuals' personal choices can seem to others to
encroach or impinge on the public space that we have the issues of individual rights in
these areas that we do.
22
See Allen, Anita L. Constitutional Law and Privacy in A Companion to Philosophy of
Law and Legal Theory, ed. by Patterson, Dennis M. Cambridge, Mass. Blackwell
Publishers, 1999. p. 140. pp. 139-155. Constitutional uses of "privacy" include two that
overlap those routinely found elsewhere in law. They are: (1) privacy used in a physical
sense, to denote seclusion, solitude, security, or bodily integrity, at home and elsewhere;
and (2) privacy used in an informational sense, to denote confidentiality, secrecy, or
anonymity, especially with respect to correspondence, conversation, and records. But
constitutional uses of "privacy" include a third one that is not yet characteristic of tort
and statutory law: (3) privacy used in a decisional sense, to denote liberty, freedom,
choice, or autonomy in decision making about sex, reproduction, marriage, family, and
health care.
23
See, Duncan, Nancy. Renegotiating Gender and Sexuality in Public and Private
Spaces in BodySpace: Destabilizing Geographies of Gender and Sexuality ed. By Nancy
Duncan. London and New York: Routledge, 1996, pp. 127-145. p. 128. The
public/private dichotomy (both the political and spatial dimensions) is frequently
employed to construct, control, discipline, confine, exclude and suppress gender and
sexual difference preserving traditional patriarchal and heterosexist power structures.
For that reason, it is not surprising at all that the most popular slogan that challenges
traditional formulations of the public/private dichotomy is The personal is political,
widely accepted by feminist, gays and lesbians.
24
According to Duncan, a private sphere of domestic, embodied activity is isolated
from an allegedly disembodied political sphere that is predominantly located in public
space. Ibid., p. 127.
25
Fitzpatrick, Joan. The Use of International Human Rights Norms to Combat Violence
Against Women in 532-571.
26
Nye, Robert A. Sexual Revolution? in Sexuality ed. by Robert A. Nye. Oxford
University Press, 1999, pp. 307-308.
27
Cf. Duncan, p. 139: Deconstructive spatial tactics can take the form of marches, Gay
Pride parades, public protests, performance art and street theatre as well as overtly
homosexual behaviour such as kissing in public.
21

such public events are opposing particular domestic conception of private. Usually,
they are not supported only by non-heterosexuals, or tolerant heterosexuals, but by all
who dare to believe that sexuality should be at least unchained from the private domain,
if not liberated from the rigid binarism of the public/private dichotomy.
2. Protection of Sexuality, Personality, and Privacy
In this section, interconnectedness between privacy and sexuality will be
examined, in the light of the assumption about sexuality as an integral part of the
personality of every human being. 28
At first sight, it seems difficult to argue for the protection of human rights related
to particular conception of sexuality taking into account that the term sexual(/ity) was
not used in the international bill of rights.29 Indeed, how are we supposed to debate
sexual rights, sexual identities, sexual minorities, discrimination on the ground of sexual
orientation etc. when all these terms are (almost) absent from the internationally
binding human rights documents and, at best, marginalized in the human rights
discourse?
Paradoxically enough, but the same difficulty arises if we want to talk about the
protection of individual as a person. In the most sophisticated system of human rights
protection, under the European Convention on Human Rights, which came into force in
1953, there is no express reference to the concept of personality of individuals.30
Nonetheless, it is not surprisingly at all that the principle of protecting individual as a
person was one of the basic interpretative principles taken for granted by the organs of
the Convention - the Commission and the Court of Human Rights - that played a
decisive role in the substantial recognition and protection of the personality of the
individual in its widest expression31.
On that account, despite the fact that there is no explicit reference to the concept
of personality, the assumption that the enhancement of the protection of individual as a
person must have been one of the primary aims of the Convention 32 is not only natural
but justified, considering that the UDHR was a primary source for its inspiration.
Indeed, dignity and worth of the human person was initially affirmed already in the
UN Charter; then was reaffirmed in the preamble of UDHR, and further developed in the
Article 3 - in the context of the right to life, liberty and the security of person, and in
the Article 22 - in the context of ECS rights indispensable for [his] dignity and the free
development of [his] personality.
On the other side, if we compare historical data concerning the origin of the
Article 8 with the development of the interpretation and application of the right to
respect for private life defined in the same article, we could easily arrive at the
conclusion that the practice of human rights law based on the creative interpretation of
this article goes far beyond original intentions, and potential expectations of its creators.
See World Association of Sexology (WAS) Declaration of Sexual Rights,
http://www.siecus.org/inter/inte0006.html: Sexuality is an integral part of the
personality of every human being. Its full development depends upon the satisfaction of
basic human needs such as the desire for contact, intimacy, emotional expression,
pleasure, tenderness and love.
29
See Petchesky, Rosalind P. Sexual Rights: Inventing a Concept, Mapping an
International Practice in
Framing the sexual subject : the politics of gender, sexuality, and power ed.
by Richard Parker, Regina Maria Barbosa, and Peter Aggleton. Berkeley and Los
Angeles, California: University of California Press, 2000, p. 82: Significantly, no
international instrument relevant to human rights, prior to 1993, makes any reference
whatsoever to the forbidden "S" word (other than "sex" as in biological sexes); that is,
prior to 1993 sexuality of any sort or manifestation is absent from international human
rights discourse. This may seem unremarkable when we consider the rigid division
between public and private spheres that, as feminist critics have repeatedly pointed out,
prevails in human rights implementation and enforcement mechanisms.
30
See Loukaides, 1995. p. 84.
31
Ibid., p. 85.
32
Ibid.
28

As some authors already observed, phrasing in which the protection of private

and family life in Article 8 was stated, is unique in the ECHR 33:
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.
The drafting history of the Article 8 34 as well as the choice of expression (the use
of the word respect instead of freedom as in Article 10 and Article 11) are interpreted
by some commentators as intention the contracting states to obtain considerable
breathing space in the regulation of private and family relations. 35
Despite the fact that in the first phase of interpretation of the article the organs
of the Convention assumed such a great margin of appreciation by the state, in the
second phase their interpretation was premised on a far broader principle: Respect for
private life has been held to require non-interference with an individuals decisions on
ways to live his or her own life.36
According to this broader interpretation, the right to respect for private life
implies not only protection of persons physical and mental integrity, her moral or
intellectual freedom, her honor and reputation, her identity and information 37; in
addition, the right was understood to include the freedom to make particularly personal
life choices, notably those involving sexual conduct 38. There is even a concern that this
transformation of Article 8 into an omnibus right and a general charter of individual
autonomy threatens to make the other rights of the Convention superfluous. 39
So, the times had changed and, at the present, meaningful and effective
protection of the freedom of the person requires legal recognition to the whole
spectrum of the personality of the individual 40 including sexuality as an integral part of
the personality of every human being 41. We can also agree to the opinion that even
though right to privacy in the European Convention is more restrictively worded than in
the UDHR, the case law
has expounded and upheld the protection of privacy to such a degree that, for
all practical purposes, the right of privacy has become a functional equivalent of
a right of personality, potentially embracing all those constituent parts of the
personality of the individual that are not expressly safeguarded by the European
Convention.42
To conclude, in principle, sexuality is one of the constituent parts, or the intrinsic
aspect of the personality of individual covered by the system of protection of ECHR.
Janis, Mark. Kay, Richard. Bradley, Anthony. European Human Rights Law: Text and
Materials. Oxford: Clarendon Press, 1995, p. 229.
34
The first draft was the same as article 12 of the UDHR:
No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right
to the protection of the law against such interference or attacks.
The second draft declared that a right to privacy in respect of family, home and
correspondence, shall be recognized. (Ibid, p. 230)
35
Ibid. p. 229.
36
Ibid. p. 230.
37
Cf. Loukaides, 1995. p. 86.
38
Janis, 1995. p. 230.
39
See Ibid. p. 231.
40
Cf. Loukaides, 1995. p. 106.
41
World Association of Sexology (WAS) - Declaration of Sexual Rights,
http://www.siecus.org/inter/inte0006.html.
42
Loukaides, 1995. p. 107.
33

3. The Right to Respect for Private Life

In the following we will see how principles discussed in the previous section are
applied in practice, that is, how sexual privacy (of non-heterosexuals) is protected in the
ECHR case law.
Recognition of the specific context in which particular human rights instrument is
designed is first step towards the understanding of its implementation. Hence, the
liberal, anti-totalitarian orientation of the Convention can easily be justified when we
take into account that it is drafted immediately after the Second World War, a period
following the Europes terrifying experience with fascism, with fresh memories about
the intrusions of the fascist state into private and family life of the citizens. Therefore, as
we already mentioned, it is not surprisingly at all that the Convention, specifies a series
of mostly negative or blocking rights, inter alia, designed to block public interference
with the citizens private domain43 What is perhaps the most surprisingly, the private
life of non-heterosexuals was not explicitly protected in the Convention though gay men
and lesbians were in the most vulnerable groups in the Nazi period. 44
Another, very important characteristic, is that ECHR is not just a cluster of
abstract rules and legal principles but a foundation for a sophisticated system for
protection of human rights, representing a hard or black letter law and approving
itself in the specific judgements about what is legal and illegal in particular cases 45.
This is just one of the reasons why the commentators - who consider the ECHR as an
enumeration of particular ways in which free choice and action are protected46 - have
no doubt that it is the most successful system of international law for the protection of
human rights47.
Nonetheless, successfulness of the system is highly problematical taking into
consideration that even after five decades of struggle, it is difficult to accept the
statement that sexual relationships are amongst the private relationships protected by
the Convention and its case-law48. Indeed, the Court, while addressing the homosexuals
and transsexuals fighting for their rights, established two common principles:
1.
that ones sexual identity and activities belong to the Article 8 (1) right to
private life;
2.
that a state may restrict the exercise of the right on the grounds of vague
policy concerns not specifically provided for under paragraph 249.
Bearing in mind that most of the states still restrict the exercise of the right to private
non-heterosexual relationships, it is more accurate to say that only heterosexual
relationships are amongst the private relationships protected by the Convention and its
case-law.
The first stage: prohibition of homosexuality justified
Forsythe, David P. Human Rights in International Relations. Cambridge: Cambridge
University Press, 2000, p. 111.
44
See Pink Triangle Coalition: An international coalition for coordinating affairs relating
to Nazi persecution of gay men and lesbians, http://www.ilga-europe.org/ : Up to an
estimated 15,000 homosexual men were deported to concentration camps for reeducation through labour. In the camps they were often subjected to the harshest
regime and assigned the most hazardous work duties. As a result, an unknown but large
number of these Pink Triangle detainees died in the camps, often from exhaustion. Many
were castrated and some subjected to so-called medical experiments. Instances of
collective murder actions against homosexual detainees, in which hundreds were
exterminated at a time, are well-documented. An as yet undetermined number were
forced into military service in so-called punitive battalions, whose high-risk duties
included clearing mine fields.
45
Forsythe, David P. 2000, p. 12.
46
Janis, 1995. p. 230.
47
Ibid., p. 3.
48
Gomien, Donna. Harris, David. Zwaak, Leo. Law and practice of the European
Convention on Human Rights and the European Social Charter. Strasbourg: Council of
Europe Publishing, 1996, p. 231.
49
Ibid., p. 232.
43

It is important to note that in the first three decades, the doctrine of state noninterference in relation to homosexual issues 50 was not accepted by the organs of the
Convention. On the contrary, the Commission accepted as justified the total prohibition
of homosexual practices by the state on the basis of protection of health and morality. 51
After all, what was undoubtedly established by the Commission in the 1950s and 1960s,
while consistently finding in Article 8(2) justifications for total prohibitions of sexual
activity between men is that such activity fell within private life 52. Furthermore, the
Commission in 1975 confirmed not only that a persons sexual life is undoubtedly part
of his private life but that constitutes an important aspect of his private life.53
Subsequent interpretation of the Article 8(2) was in large extent influenced by
the judgement of another case about the possible violation of Article 10, the right to
freedom of expression. In the Handyside case the Commission authorized that States
enjoy a wide margin of appreciation in deciding what is necessary for the protection of
morals.54 The influence of the Handyside case on the later interpretations of the Article 8
related to sexuality can be best seen and understood through a careful analysis of the
judgement on the Dudgeon case in which Handyside case was quoted several times.
The second stage: decriminalization of homosexuality
The significance of the Dudgeon case consist in the fact that the Court for the
first time acknowledged that absolute prohibition of homosexual acts by the state is a
violation of Article 8. The government unsuccessfully defended prohibition by quoting
Article 8(2) together with Handyside.55 Although the Court reaffirmed as indisputable
fact previously quoted statement from Handyside judgement, it clarified that the scope
of the margin of appreciation is not affected only by the aim of the restriction but with
the nature of the activities involved as well:
The present case concerns a most intimate aspect of private life. Accordingly,
there must exist particularly serious reasons before interferences on the part of
the public authorities can be legitimate for the purposes of paragraph 2 of Article
8 (art. 8-2).
In spite of the fact that the Court in the Dudgeon case narrowed the scope of the
states margin of appreciation and proclaimed with great majority that the mere
existence of the prohibitive legislation constitutes a continuous and direct reference
with the right to respect for private life 56 the Dudgeon Court also conceded that the
homosexual conduct may legitimately be regulated by the state:
There can be no denial that some degree of regulation of male homosexual
conduct, as indeed of other forms of sexual conduct, by means of the criminal law
can be justified as "necessary in a democratic society". The overall function

Ibid.
See the application 104/55. X v. Federal Republic of Germany. Cf. van Dijk, P. & van
Hoof G.J.H. Theory and Practice of the European Convention on Human Rights. Kluwer
Law International, 1998. Ch. VII, 8.2.3.
52
Wintemute, 1995. p. 98.
53
Ibid.
54
Cf. Ibid. See Judgement of 8 June 1976, Series A no. 22 (holding that the United
Kingdoms seizure of copies of a primary school textbook containing information on
sexuality did not violate the publishers right to free expression): it is not possible to
find in the domestic law of the various Contracting States a uniform European
conception of morals. The view taken by their respective laws of the requirements of
morals varies from time to time and from place to place, especially in our era which is
characterised by a rapid and far-reaching evolution of opinions on the subject. By
reason of their direct and continuous contact with the vital forces of their countries,
State authorities are in principle in a better position than the international judge to give
an opinion on the exact content of these requirements as well as on the "necessity" of a
"restriction" or "penalty" intended to meet them.
55
Cf. Ibid. p. 177.
56
Cf. Loukaides, 1995. p. 94.
50
51

served by the criminal law in this field is "to preserve public order and decency
[and] to protect the citizen from what is offensive or injurious". 57
Trying to preserve certain balance between morals and rights, the Dudgeon
Court recognized the margin of appreciation accorded to each member State to
regulate its own moral climate, nevertheless maintaining that moral regulation may
abridge a fundamental right only when the necessity of so doing fulfils a pressing social
need.58
In addition, the Court continued with the practice already established by the
Commission to withdraw the claims about suffering discrimination on grounds of
sexuality within the meaning of Article 14 of the Convention. Dudgeons submission that
Article 14 requires that the age of consent should be the same for all forms of sexual
relations was not accepted due to the fact that the age of consent was not fixed by the
state law on the assumption that only once this age has been fixed that an issue under
Article 14 might arise. In a previous case, the Commission had found that the
prohibition of homosexual relations between consenting adults aged 18 to 21 years was
justified on the basis of the provisions of paragraph 2 of Article 8 of the Convention 59
rejecting allegations of discrimination against male homosexuals, as compared with
lesbians, to whom the relevant prohibitions did not apply because, according to the
Commission, the social danger posed by lesbianism was less than in the case of male
homosexuals60!?
After all, we agree that Dudgeon case represents a breakthrough 61 in the
European jurisprudence because it established that the mere existence of the laws
prohibiting sexual activities could be treated as interference with the private life - an
assumption confirmed in the Norris case (where the element of steps preliminary to a
prosecution was missing) as well as in Modinos case (where the Attorney-General of
Cyprus had adopted a policy of not prosecuting). 62 In addition, the measure of
importance of these cases is the fact that since that time, laws that prohibited
homosexuality have been repealed in more than 20 European countries. 63
The third stage: period of frustration
DUDGEON v. THE UNITED KINGDOM,
http://hudoc.echr.coe.int/Hudoc2doc/HEJUD/sift/58.txt: Furthermore, this necessity for
some degree of control may even extend to consensual acts committed in private,
notably where there is call "to provide sufficient safeguards against exploitation and
corruption of others, particularly those who are specially vulnerable because they are
young, weak in body or mind, inexperienced, or in a state of special physical, official or
economic dependence".
58
Heinze, 1995. p. 196.
59
Loukaides, 1995. p. 94.
60
Ibid.
61
McLoughlin, Michael T. Crystal or Glass?: A Review of Dudgeon v. United Kingdom on
the Fifteenth Anniversary of the Decision. E Law - Murdoch University Electronic
Journal of Law, Vol 3, No 4. 1996.
http://www.murdoch.edu.au/elaw/issues/v3n4/mclough.html: the principal impact of
the Dudgeon case has been the psychological encouragement it provided to European
gay, lesbian, bisexual, and transgender activists, and that its usefulness as a tool in the
achievement of broader legal equality was limited by the focus of the case on the
question of decriminalisation; the nature of the Convention articles, and prior rulings of
the ECHR on them; and the Court's inclusion in it's opinion the observation that
legalisation of homosexuality does not imply approval of homosexuality.
62
Cf. Wintemute, 1995. pp. 101-102.
63
Cf. Warner, Nigel. Gay and Lesbian Rights: ILGAs Activities at European Union and
Council of Europe. Conference papers of the international conference "Sexual
Orientation, Gender Identity and Fundamental Rights - Decriminalisation, Antidiscrimination Laws and the Recognition of Gay, Lesbian and Transsexuals Rights" Turin, 9th-10th March 2001.
http://www.cersgosig.informagay.it/documentiuk/teasures.html
57

As, one critic put in plain words, sixteen years the Convention jurisprudence
remained frozen at the point of decriminalization, a period in which the Commission
ruled as inadmissible series of cases involving the age of consent, the armed forces,
privacy, and tenancy succession rights.64
For example, the Commission did not found interference with the right to respect
for private life and home in Johnson v. UK65 even though there were provisions of
English law prohibiting sexual activity between men where one is under 21, or where
more than two persons take part or are present 66. As Wintemute notes, in cases not
involving a total or partial (limited as to age or number of participants) criminal
prohibition of same-sex sexual activity, the need for an interference with private life
has posed a major stumbling block for applicants. 67
In this period of frustration, the applicants learned that admittance of the
interference by the Court could end in a violation of Article 8 if and only if does not
exist a justification for the interference under Article 8(2). Such a justification,
according to the criteria established in Dudgeon case, is present where the
interference (1) is in accordance with the law, (2) pursues one or more of the eight
legitimate aims listed in Article 8(2), and (3) is necessary in a democratic society for
the achievement of that aim or aims. 68 Just for illustration, in Bruce v. UK, the case in
which applicant challenged the former total prohibition of sexual activity between men
(and between woman) in the UK armed forces, even when off duty and off base 69, the
Commission declared that this clear case of interference with the right to respect for
private life was justified for the prevention of disorder, and hence failed to protect the
individual.
Additional frustration for the applicants was Commissions interpretation that
same-sex couples can not prove an interference with their family life with reference to
the same Article 8, simply because of the Commissions view that same-sex couples do
not have a family life, family being a concept confined to opposite-sex couples. 70 Such
a narrow-minded concept of a family was accepted even in the Cossey v. U.K. where a
(chromosomally male) transsexual woman had been prevented from marrying a man 71
on the grounds that marriage is the basis of the family and that Article 12 referred to
the traditional marriage between persons of opposite biological sex 72. It is highly
controversial what the Commission intended with traditional marriage bearing in mind
the evidence that in many pre-statist cultures there was at least tolerance of same-sex
relationships including various forms of same-sex marriage. 73
Concerning the rights of transsexuals, it is worth to mention that unlike with the
rights of homosexuals, the Convention organs have introduced the concept of a state
discretion to limit the doctrine of state positive obligation to act, in relation to
transsexual issues.74 However, in the case of Van Oosterwijk v. Belgium, the
Commission noted that the State has refused to recognize an essential element of his
personality: his sexual identity resulting from his changed physical form, his physical
See ibid.
See Wintemute, 1995. p. 102: The police raided a party he was giving at 2:00 a.m.,
arrested him and 37 guests, took him to a police station, questioned him about his
homosexuality, and detained him until 11:30 a.m. No one was prosecuted, but press
publicity caused distress and may have caused the applicant to lose an offer of
permanent employment.
66
See Ibid.
67
Ibid., p. 103.
68
Ibid., p. 105.
69
Ibid., p. 109.
70
Ibid., p. 113.
71
Ibid., p. 112.
72
Ibid.
73
Cf. Heinze, 1995. p. 33. Heinze is qouting Damslets examples of same-sex marriages
in Hittites tradition, tradition of Roman law and tradition of Christian same-sex
marriage ceremonies with the conclusion that The tradition of same-sex marriage
transcends thousands of years of human history.
74
Gomien, 1996. p. 232.
64
65

10

make-up and his social role. 75 Besides the concept of sexual identity, in a later case the
Commission also recognized the concept of sexual integrity as a part of the physical and
moral integrity of an individual in the domain of his private life. 76
The fourth stage: narrowing the states margin of appreciation
The critics were not indifferent towards such restrictive interpretations by the
organs of the Convention and after a long wait the vigorous criticism have made easier
the change of the interpretative practices.
Heinze, for example, submitted several arguments why the jurisprudence of the
European Convention of Human Rights should be classified under the minimum
recognition model77 at the same time describing its comparative strengths and
weaknesses. Compared with the expansive recognition model 78, minimum recognition (or
decriminalization) model provides only one sphere, decriminalization of the sexual
(usually homosexual) practices, failing to provide the sphere of general nondiscrimination as well as the sphere of affirmative assimilation. This is the reason why
this model was depicted by the author as representing a bottom limit. 79
Wintemutes opinion was even more discouraging for the Courts practice of
interpretation.80 He was especially disappointed by the Court and Commissions
interpretations that the Convention is only violated by criminalization of private, samesex sexual activity between no more than two persons who are both over 21 and are not
in the armed forces.81 Wintemutes recommendations for altering interpretation by the
organs of the Convention in order to arrive to the judgement that kinds of sexual
orientation discrimination other than criminalization violate the Convention were
particularly inspiring.82
That such criticism was not unproductive proved the REPORT OF THE
COMMISSION in Sutherland against the United Kingdom 83 as well as the Judgement
of A.D.T. v. THE UNITED KINGDOM. 84 In this case, the Court found a violation of the
Quoted in Loukaides, 1995. p. 95.
See Ibid.
77
According to Heinze, four models can be distinguished among the countries that
formally recognize legal rights of sexual orientation: the expansive recognition model,
the intermediate recognition model, the minimum recognition model, and the mixed
recognition model. Cf. Heinze, 1995. p. 105.
78
Or Northern European model which include Netherlands, Denmark, Norway, and
Sweden.
79
Ibid., p. 112: The minimum recognition regimes lack a comprehensive vision of rights
of sexual minorities. They lack programmatic undertakings to formulate and implement
such rights. They even lack acknowledgement of basic equality incorporated in nondiscrimination norms.
80
Wintemute, 1995. p. 142: An assessment of the level of protection that the Convention
provides against sexual orientation discrimination depends on whether one views the
glass as ten per cent full or ninety per cent empty.
81
Wintemute, 1995. p. 143.
82
Wintemute suggested a broader view of private life that will include, in Heinzes
terms, not only the spatial but the decisional aspect as well; a broader view of
interference with private life, and of discrimination; a more critical review towards
the state justifications for interference or discrimination under Article 8(2) or 14; and
elimination of the discrimination (based on sexual orientation or sex) which is inherent
in its [the Commissions] narrow interpretation of family life and marriage as for
heterosexual persons only, and which is not required by the text of the Convention.
Wintemute, 1995. p. 131.
83
REPORT OF THE COMMISSION (adopted on 1 July 1997). Sutherland against the
United Kingdom (Application No. 25186/94): the Commission finds that no objective
and reasonable justification exists for the maintenance of a higher minimum age of
consent to male homosexual, than to heterosexual, acts and that the application
discloses discriminatory treatment in the exercise of the applicant's right to respect for
private life under Article 8 (Art. 8) of the Convention.
84
Judgement. A.D.T. v. THE UNITED KINGDOM (Application no. 35765/97), 31 July
2000. The Court found that the applicant has been the victim of an interference with
75
76

11

Article 8 although the applicant was involved in sexual activities with more than two
persons85 describing such activities as genuinely private and the behaviour as of
purely private nature.
Furthermore, in SMITH AND GRADY v. THE UNITED KINGDOM, 86 related to the
prohibition of homosexuality in the army forces, the Court found a violation of Article 8
of the Convention since neither the investigations conducted into the applicants sexual
orientation, nor their discharge on the grounds of their homosexuality in pursuance of
the Ministry of Defence policy, were justified under Article 8 2 of the Convention. 87
The judgement of LUSTIG-PREAN AND BECKETT v. THE UNITED KINGDOM 88 was
similarly worded.
The judgment of SALGUEIRO DA SILVA MOUTA v. PORTUGAL, involving custody
rights of a gay father, for the first time addressed lesbian and gay parenting rights. 89 The
applicant complaint90 was accepted by the Court, sincerely admitting that was forced to
find, in the light of the foregoing, that the Court of Appeal made a distinction based on
considerations regarding the applicants sexual orientation, a distinction which is not
acceptable under the Convention 91. As one passionate critic observed, it had taken a
progression of cases over nearly 50 years to reach this simple conclusion, but a
conclusion which should have profound consequences. 92
Finally, in a very recent judgement, CHRISTINE GOODWIN v. THE UNITED
KINGDOM, the Court addressed transsexuals rights to private life finding in addition a
breach of Article 12 of the Convention.93 The Court found a failure to respect the right to
private life of Christine Goodwin, post-operative male to female transsexual, who
complained about the states non-recognition of her sex, on the ground that there are
no significant factors of public interest to weigh against the interest of this individual
applicant in obtaining legal recognition of her gender re-assignment 94.
Conclusion
In light of the results of our short analysis, from the perspective of the practice of
human rights law, we could confirm that human sexuality is only implicitly recognized in
the system of protection under the European Convention of Human Rights given that the
references to sexuality are absent from the Convention and marginalized in the human
rights theory dedicated to this system of protection.
his right to respect for his private life both as regards the existence of legislation
prohibiting consensual sexual acts between more than two men in private, and as
regards the conviction for gross indecency.
85
More precisely, a restricted number of friends in circumstances in which it was most
unlikely that others would become aware of what was going on
86
JUDGMENT. CASE OF SMITH AND GRADY v. THE UNITED KINGDOM (Applications
nos. 33985/96 and 33986/96). STRASBOURG, 27 September 1999.
87
The Court gave explanation that the Government have not offered convincing and
weighty reasons justifying the continued investigation of the applicants sexual
orientation once they had confirmed their homosexuality to the air force authorities.
88
See JUDGMENT. CASE OF LUSTIG-PREAN AND BECKETT v. THE UNITED KINGDOM
(Applications nos. 31417/96 and 32377/96). STRASBOURG, 27 September 1999.
89
Cf. Warner, Nigel. 2001,
http://www.cersgosig.informagay.it/documentiuk/teasures.html
90
JUDGMENT. CASE OF SALGUEIRO DA SILVA MOUTA v. PORTUGAL (Application no.
33290/96). STRASBOURG, 21 December 1999: The applicant complained that the
Lisbon Court of Appeal had based its decision to award parental responsibility for their
daughter, M., to his ex-wife rather than to himself exclusively on the ground of his sexual
orientation. He alleged that this constituted a violation of Article 8 of the Convention
taken alone and in conjunction with Article 14.
91
Ibid.
92
Cf. Warner, Nigel. 2001,
http://www.cersgosig.informagay.it/documentiuk/teasures.html
93
JUDGMENT, CASE OF CHRISTINE GOODWIN v. THE UNITED KINGDOM (Application
no. 28957/95) 11 July 2002: the Court finds no justification for barring the
transsexual from enjoying the right to marry under any circumstances.
94
Ibid.

12

In view of our brief survey of the ECHR case law, we can conclude that sexuality,
while recognized in principle as an important aspect of personality of individuals, in
practice is usually confined in the highly controversial domain of private life. As a
consequence, in the majority of cases the main issue was to determine whether the
failure of respect belongs to private life in the first place, and if it belongs, whether
the states interference with privacy of individual is justified and necessary in a
democratic society.
The struggle of sexual subjects before ECHR law for providing protection of their
sexual privacy can be best described as the struggle between the legitimate and the
illegitimate, one that has as its goal the conversion of the illegitimate into the
legitimate.95 So, if in the beginning of the struggle only heterosexuals were
recognized as legitimate sexual subjects, now we reached the stage in which the
practice recognized that non-heterosexuals have a right to respect for private life as
well.96 The ECHR jurisprudence needed nearly half a century to establish that a
distinction based on considerations regarding the applicants sexual orientation is not
acceptable under the Convention.97 The future judgements will show whether this
statement could be interpreted as a legitimisation 98 of actual diversity of sexual
orientations.
In our consideration of the modes of protection of non-heterosexuals as subjects
before ECHR law, perhaps the most striking aspect was the contingency of the juridical
decisions, especially the ways in which individual choices were shaped by (frequently
unpredictable) conceptions of privacy, routinely derived from specific interpretations
of public/private distinction. However, few very important principles could be extracted
as a basis for legitimisation of juridical decisions. Consequently, we could say that
protection of the right to privacy - right to respect for private life in the context of
ECHR presupposes, at least, protection of sexual integrity (as part of persons physical
and mental integrity), sexual identity, sexual freedom (related to the decisional aspect of
privacy99) and protection of sexual autonomy (related to the spatial aspect of privacy100).
And, finally, short observation about the feminist charges that the liberal
public/private distinction itself is a source of injustice not only with respect to gender,
but with respect to sexuality as well. Seyla Benhabib, for example, stressed that
Questions of justice were from the beginning restricted to the 'public sphere', whereas
the private sphere was considered outside the realm of justice. 101 Speaking about
conflation of religious and economic freedoms with the freedom of intimacy, under the
Cf. Butler, Judith. Is Kinship Always Already Heterosexual?. Differences: A Journal of
Feminist Cultural Studies, 13.1 2002, p. 17.
96
To be more precise, homosexuals and, from recently, transsexuals. Five years ago, the
Court found that the prosecution and conviction of the applicants involved in
consensual sado-masochistic activities for purposes of sexual gratification were
necessary in a democratic society for the protection of health within the meaning of
Article 8 para. 2 of the Convention (Judgement. CASE OF LASKEY, JAGGARD AND
BROWN v. THE UNITED KINGDOM (Application nos. 21627/93 ; 21826/93 ; 21974/93).
STRASBOURG, 19.02.1997.)
97
Cf. Warner, Nigel. 2001,
http://www.cersgosig.informagay.it/documentiuk/teasures.html.
98
Cf. Butler, Judith. Is Kinship Always Already Heterosexual?. Differences: A Journal of
Feminist Cultural Studies, 13.1 2002, p. 17: To be legitimated by the state is to enter
into the terms of legitimation offered there and to find that ones public and
recognizable sense of personhood is fundamentally dependent on the lexicon of that
legitimation.
99
Cf. Heinze, Eric. Sexual Orientation: A Human Right. Martinus Nijhoff Publishers,
1995, p. 173: There can be no privacy, or individual liberty generally, without the
freedom to make choices governing ones intimate relationships with others.
100
This is one of the basic aspects of privacy related to a zone of isolation where sexual
freedom can be enjoyed, and usually identified with the the sanctity of the home. Cf.
Heinze, 1995. p. 175.
101
Benhabib, Seyla. Models of Public Space: Hannah Arendt, The Liberal Tradition, and
Jrgen Habermas in Feminism, the Public and the Private ed. by Landes, Joan B. Oxford
; New York: Oxford University Press (UK), 1998. p. 87. pp. 65-99.
95

13

one title of 'privacy' or of 'private questions of the good life', 102 Benhabib criticized
contemporary normative moral and political theory as 'gender-blind' and 'power-blind'
concerning relations in the 'intimate sphere'. 103 Nancy Fraser too, pointed out that we
need to revise the standard liberal view of the public sphere, which takes the
categories of public and private as self-evident. 104 According to Fraser, a new, more
adequate theory of public sphere is required that will demonstrate that these categories
are multivalent and contested with gendered and racialized subtexts, and that not
everyone stands in the same relation to privacy and publicity. 105
However, if we follow Kymlicka, then, feminist criticism gives the impression that
have misunderstood and underestimated potentials of the liberal public/private
distinction. In fact, it seems that feminist criticism is more appropriate towards the
traditional domestic-public distinction which is pre-liberal one, than towards the two
different conceptions of the public/private distinction in liberalism. 106 However, in the
context of human rights protection, liberal defence could be justified only if
demonstrates that human rights jurisprudence in general, and/or courts in particular,
also regularly failed to differentiate the two conceptions of the public/private distinction
in liberalism with the pre-liberal traditional domestic-public distinction.
But, liberal defence is not in position to prove this neither at the level of human
rights theory, nor at the level of human rights practice. Not only the liberal state-society
distinction could be detected in human rights discourse 107 but also the liberal distinction
which separates the personal or the intimate from the public, where the public
includes both state and civil society108. In this chapter, we had excellent opportunity to
see how juridical decisions were prejudiced by the liberal concern not only to protect
the private sphere of social life, but also to carve up a realm within the private sphere
where individuals can have privacy.109
Without doubt, a number of juridical decisions were influenced by the traditional
domestic-public distinction, theoretically recognized too. 110 After all, we should not
Benhabib distinguishes three distinct dimensions of 'privacy', 'privacy rights', and the
'private sphere', as invoked by the modern tradition of political thought: first, privacy
understood as the sphere of moral and religious conscience; a second set of privacy
rights accompany the eventual establishment of the liberal separation of the church and
state (privacy rights pertaining to economic liberties); the third meaning of 'privacy'
and 'privacy rights' is that of the 'intimate sphere' (This is the domain of the household,
of meeting the daily needs of life, of sexuality, and reproduction, of care for the young,
the sick, and the elderly.) Benhabib, Seyla, 1998. p. 86.
103
Benhabib, Seyla. 1998, p. 87: The idealizing lens of concepts like 'intimacy' does not
allow one to see that women's work in the private sphere, like care for the young and
the running of the household, has been unremunerated. Consequently, the rules
governing the sexual division of labour in the family have been placed beyond the scope
of justice.
104
Fraser, Nancy. Sex, Lies, and the Public Sphere: Reflections on the Confirmation of
Clarence Thomas in Feminism, the Public and the Private ed. by Landes, Joan B. Oxford
; New York Oxford University Press (UK), 1998. p. 331. pp. 314-337.
105
Fraser, Nancy. 1998, p. 334: It would need to distinguish, for example, official
governmental public spheres, massmediated mainstream public spheres, counter-pubic
spheres, and informal public spheres in everyday life. It would also need to show how
some of these publics marginalize others.
106
Kymlicka, Will. Contemporary Political Philosophy: An Introduction. Second Edition.
Oxford University Press, 2002, p. 388: the first, which originated in Locke, is the
distinction between the political and the social; the second, which arose with Romanticinfluenced liberals, is the distinction between the social and the personal.
107
When Steiner and Alston, for instance, are giving examples of abuse of women not
by state (public) but by nongovernmental (private) actors and action. (Steiner, Henry
J., Alston, Philip. International Human Rights in Context (Second edition). Oxford:
Oxford University Press, 2000, p. 211.)
108
Kymlicka, Will. 2002, p. 394.
109
Kymlicka, Will. 2002, p. 395.
110
See Steiner, Henry J., Alston, Philip. 2000, p. 211: From other perspectives, the
distinction concerns different spheres of life and action. The private is frequently
102

14

forget that the right to privacy in the ECHR is embodied in the expression Everyone
has the right to respect for his private and family life, his home and his
correspondence. In any case, Kymlickas attempt to save the liberal public/private
distinction from the traditional domestic/public distinction could find support by some
liberal feminists since promises such a concept of privacy that will be detached from
patriarchal ideas of family autonomy. 111 Although, certainly, it will be contested by
those feminists who still believe that the liberal public/private separation is always
already patriarchal division112 and, thus, sexual division.113

associated with the home, family, domestic life. The public is identified with the
interactions of a working life: salaried employment, business, professions, the give and
take of the market, being out in the world.
111
Kymlicka, Will. 2002, p. 398: Once it is detached from patriarchal ideas of family
autonomy, I believe that most feminists share the basic liberal motivations for respecting
privacy i.e. the value of having some freedom from distraction and from the incessant
demands of others, and the value to experiment with unpopular ideas and to nourish
intimate relationships.
112
Pateman, for example, warned that the double separation of the private and public is
already contained in Hegels social order: the class division between civil society and
the state (between economic man and citizen, between private enterprise and the public
power); and the patriarchal separation between the private family and the public world
of civil society/state. Moreover, the public character of the sphere of civil society/state is
constructed and gains its meaning through what it excludesthe private association of
the family. (Pateman, Carole. The Patriarchal Welfare State in Feminism, the Public
and the Private ed. by Landes, Joan B. Oxford ; New York Oxford University Press (UK),
1998. p. 246. pp. 241-274.)
113
See Pateman, Carole. 1998. p. 246: The patriarchal division between public and
private is also a sexual division. Women, naturally lacking the capacities for public
participation, remain within an association constituted by love, ties of blood, natural
subjection and / particularity, and in which they are governed by men. The public world
of universal citizenship is an association of free and equal individuals, a sphere of
property, rights and contractand of men, who interact as formally equal citizens.

15