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The Council of Europe and the creation of LGBT identities through language and discourse: a critical analysis of case law and institutional practices

ABSTRACT This article offers a critical overview on some of the issues concerning sexual orientation and gender identity on which the European Court of Human Rights (ECtHR) has ruled in the last three decades. These issues include the criminalisation of consensual sexual activities between adults, the criminalisation of sadomasochistic activities, as well as the discrimination of lesbian, gay and bisexual persons in the armed forces. In the article, it is argued that case law of the ECtHR contributes to the creation of the ‘homosexual’ or ‘transgender’ as a legal subject. In particular, it is suggested that the fact of privileging some words rather than others can be considered as an attempt, from the part of judicial institutions, to give juridical legitimacy to a limited portion of forms of sexual and gender expressions available to individuals. The analysis for this article is also complemented by a comparison between the linguistic choices of the ECtHR with those of the former Commissioner for Human Rights of the Council of Europe (CoE), Thomas Hammarberg, in relation to issues relating to homophobia and transphobia.