This thesis investigates, drawing on feminist legal theory, how the European Court of Human Rights applies the margin of appreciation in cases involving gendered human rights. While the European Convention on Human Rights formally guarantees universal rights, its application often reflects entrenched patriarchal and heteronormative structures. By analysing a selection of cases on reproductive rights, LGBTQ rights, religion, gender-based violence, gender discrimination and morality, the study demonstrates how deference to State authorities can undermine substantive gender equality.
While the European Convention on Human Rights formally guarantees universal rights, its application often reflects entrenched patriarchal and heteronormative structures. By analysing a selection of cases on reproductive rights, LGBTQ rights, religion, gender-based violence, gender discrimination and morality, the study demonstrates how deference to State authorities can undermine substantive gender equality.
The central findings are fourfold. First, gendered questions frequently fall under a broad margin of appreciation precisely because of their gendered nature. Issues such as reproduction, sexuality and family life are framed as matters of ‘private life’ or ‘sensitive moral issues’, thereby receiving less scrutiny.
Secondly, the Court employs a concept of ‘morality’ that is opaque and inconsistently applied. By deferring to States’ assertions of national moral views, the Court cloaks patriarchal biases in a veneer of neutrality.
Thirdly, the Court tends to use the margin of appreciation to avoid politically contentious questions. Strong judgments are issued in cases of blatant violations or against non-compliant States.
However, on more divisive matters, such as abortion or sexuality, the Court often hides behind deference, privileging national sovereignty over individual rights. Finally, the thesis concludes that while the Court can play a significant role in rights protection, advancing gendered rights through Strasbourg remains difficult. Litigation strategies relying on the Court must contend with the structural hurdles posed by the margin of appreciation.
This thesis thus reframes the margin of appreciation as a gendered doctrine. It highlights how its application risks entrenching rather than dismantling inequality, while also recognising the Court’s potential to shape legal and social norms when it chooses to exercise its authority in a more consistent and critical manner.