had not undergone gender reassignment surgery. This reflects how much the focus has shifted from state convenience to individual identity. Early case law gave much scrutiny to the notion of transgender identity itself and justified its deference to member states based on a lack of medical or scientific evidence of the validity of transgender identity. The law has progressed to afford both transgender and transsexual people equal protection, through holding their personal identification as the primary consideration. Problems Despite these positive developments, certain legal issues remain. It is unclear whether the ECHR’s pre-Goodwin decision in X, Y and Z v UK will be departed from in light of subsequent reforms. In this case, X sought recognition as the father of Z, who had been conceived by his partner Y through artificial insemination. The Court held no violation of Article 8 had occurred. As there was a lack of European consensus on granting parental rights to transsexuals, the state must be afforded a wide margin of appreciation. This return to a reliance on European consensus and strict adherence to biological determinations of gender seems to conflate with Goodwin and subsequent jurisprudence. As transgender couples are likely to want to use artificial insemination, clarity is needed on this matter. Another issue emerging from state gender recognition is that the gender identity of people who had married prior to transitioning and who remained with their spouse was conditional on their marriage being terminated through annulment or divorce. Under Article 12 of the Convention, marriage is between a man and a woman according and governed by each state’s national laws. The Court has repeatedly declined to grant exceptions to transgender people in this scenario. In Parry v UK and R and F v UK, the Court held in both cases that while the applicants “must invidiously sabotage their gender or their marriage” their cases were declared inadmissible for being “manifestly ill-founded”. This position was reaffirmed in Hämäläinen v Finland, despite the applicants’ strong religious convictions against the dissolution of marriage. The Court argued the balance is struck through civil partnership offering virtually identical legal protections to applicants as marriage does. The Court may be satisfied with their reasoning, but the tension in this verdict demonstrates that while much progress has been made in furthering transgender rights, there is still more work to be done.
The Widening Scope of Article 8 ECtHR in Challenging Industrial Pollution AMANDA CLIFFE SS LAW
The degradation of the environment has become a pressing issue, as demonstrated by the latest Intergovernmental Panel on Climate Change (IPCC) report. A major underlying cause of this is industrial pollution, such as water contamination from mining, toxic fumes released from factories and diesel emissions from air traffic. Though there is currently no provision for an environmental right in the European Convention of Human Rights, Article 8 is progressively being used to challenge industrial pollution where it has interfered with an applicant’s rights to home, private or family life. The European Court of Human Rights (ECtHR) has traditionally afforded a wide margin of appreciation to states in environmental cases due to the competing interests involved, as well as the lack of explicit enumeration of an environmental right in the Convention. However, this has not impeded the development of environmental case law under Article 8. This piece will demonstrate the ECtHR’s increasingly progressive approach to industrial pollution challenges under Article 8 despite the wide margin of appreciation given to states. This will be done by analysing successful and unsuccessful cases from ECtHR case law, as well as a parallel case in Irish law. López Ostra v. Spain (1994) is one of the first successful cases invoking Article 8 to challenge industrial pollution. The applicant claimed that the fumes emanating from a liquid waste treatment plant near her home affected her right to home, family and private life. The ECtHR found a violation
The Eagle Gazette Volume 5 Issue 2 · 7
