ECtHR refuses paternity leave for same-sex female couple

The European Court of Human Rights (ECtHR) has ruled that a French woman in a same-sex relationship was not discriminated against following the birth of her partner's child.

The case was brought by a female couple who were in a civil partnership. One of the women applied for 11 days paid paternity leave, which was refused on the grounds that the legislation made no provision for granting paternity leave to woman. The French courts deemed it clear and unambiguous who was entitled to paternity leave, as the legislation referred to the ‘father’ of the child and not to the mother’s ‘partner’.

The ECtHR upheld this interpretation, and found the application manifestly ill-founded. The Court considered that the woman had been helping to care for the child and was in a comparable position to a biological father within a heterosexual couple. While she had been subject to a difference in treatment, it was deemed to be in pursuit of a legitimate aim as paternity leave was designed to allow fathers to play a greater role in their children’s upbringing and to promote a more equal distribution of household tasks between men and women. The Court further found that the difference in treatment had not been based on sex or sexual orientation, as in a heterosexual couple the mother’s partner would not be eligible for paternity leave either if he was not the child’s father. It feel within the State's margin of appreciation to make paternity leave conditional on the existence of a parental relationship.

The Court therefore found no appearance of a violation of Article 14, taken in conjunction with Article 8. The Court also noted that since 17 December 2012, the mother’s partner was now entitled to carer’s leave under the same conditions as paternity leave but is not only tied to the child’s biological father.

Click here for the Press Release in Hallier and Others v. France.




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