Introduction
In December of 2025, on Human Rights Day, my PhD research ‘Queering Courts’ was awarded the 2025 Max van der Stoel Human Rights Award. This blog entry reflects on the topic of the dissertation in connection with the Max van der Stoel Human Rights Award.
The Max van der Stoel Human Rights Award is an incentive award for junior researchers in the field of human rights in its broadest sense. Research is eligible if it focuses on human rights procedures, institutions, implementation, monitoring, and enforcement. Dissertations may be theoretical in nature or based on empirical research. Moreover, the prize is open to research analysing not just traditional human rights, but also social and economic rights, as well as human rights enjoyment in specific situations, such as emergencies and during or after violent conflicts, or by specific groups, for instance through the lens of gender, age, ethnicity or another ground.
In my PhD research, I examined how the European Court of Human Rights (ECtHR), the Court of Justice of the European Union (CJEU), and the United States Supreme Court (US Supreme Court) address cases concerning same-sex couples asking for ‘equal marriage rights’, namely the numerous rights and benefits that are connected or associated with marriage and/or the legal recognition of same-sex relationships. Equal marriage rights touch upon the sensitive and highly politicized institution of marriage and the definition and meaning that states give to it. In most states, marriage has traditionally been considered a union between a man and a woman of marriageable age. Same-sex couples or sexual minorities invoking equal marriage rights challenge that exact definition and ask of courts to extend the scope to include persons of the same ‘sex’, ‘gender’, ‘sexuality’ or ‘sexual orientation’. In order for courts to be able to do this, they are forced to think about the ways these notions are to be interpreted. This is not only the case when applying the rules on the institution of marriage, but also those on citizenship, dignity, non-discriminatory and equality; all core human rights principles, placing the PhD research squarely into the scope of the Award.
‘Internal’ and ‘External’ Research Methodology
What particularly stood out for the Jury of the Award in their assessment, and as mentioned in the Award Ceremony, was the distinctive methodological approach in my research, combining traditional doctrinal analysis with queer legal theory. Research within international human rights law is most commonly conducted doctrinally. Doctrinal legal research, as explained by Hutchinson and Duncan, entails the analysis of legal rules and principles through the ‘perspective of an insider’, often reflecting the viewpoint of the participant in the legal system studying the texts of the law. Academics therefore commonly consider it to being an ‘internal’ research framework method or approach. Research reveals that a majority of contemporary legal researchers acknowledge the importance of building on doctrinal research conclusions by using sociological or other ‘outsider’ perspectives in order to understand better how law works in practice. This can take place through the use of ‘external’ research framework methods, as identified by Taekema, or approaches that reflect ‘the conceptual resources of extra-legal disciplines’ and involve studying the law in practice.
This could consist in the types of research that, as Westerman puts it, study law ‘from an independent theoretical framework, which consists of concepts, categories and criteria that are not primarily borrowed from the legal system itself and include historical studies, socio-legal research, philosophy, political theory and economy’. Queer (legal) theory is such an outsider external research framework methodology that I employed in my dissertation to analyse the equal marriage rights case law of the three courts and the legal contexts they operate in more in-depth, but also to critically reflect on how the courts not only interpret yet also contribute to the ‘construction’ of the notions of sex, gender, sexuality and sexual orientation, and what consequences this may have for same-sex couples seeking equal treatment through judicial means.
These aims are achieved through a technique derived mainly from the works of linguist Ferdinand De Saussure and philosopher Jacques Derrida known as ‘deconstruction’. Deconstruction is premised on the notion that language is organized on the basis of hierarchy, oppositions and hidden antinomies, and facilitates a better comprehension of the link between text and its meaning. Deconstructive techniques used for legal analysis could critique existing legal doctrines and for instance show how arguments offered to support a particular rule undermine themselves by supporting an opposite rule instead. In addition, they can demonstrate how doctrinal arguments are informed by and disguise ideological thinking. Finally, deconstructive techniques offer both a new kind of interpretive strategy and a critique of conventional interpretations of legal texts.
“Queering Courts”
By employing deconstruction, the research in the dissertation reveals that courts initially interpreted the notions of ‘sex’ and ‘gender’ as binary (male/female etc.) constructs with a certain hierarchical dominance or preference for hetero- and cisnormativity, including expectations as regards the sexual orientation and gender roles of the applicants on the basis of their sex and gender. Any person not matching the characteristics of what the courts consider as falling within the two ends of the binary construct is, in principle, not eligible for protection. This is also known as ‘binary-normativity,’ which Gilleri describes as ‘a grid of intertwined expectations on ‘sex’ (...) and ‘gender’. Applicants soon realised they needed to change their litigation strategies. Rather than stressing ‘sex’ and ‘gender’ (what Wintemute calls ‘sex rights’), they needed to focus on ‘sexuality’ and ‘sexual orientation’ (‘love rights’), thereby emphasising the legal importance of the recognition of relationships in order to receive better protection. Yet also with these notions, the courts interpret them in binary ways with the dominant part or hierarchy hinging on heteronormativity, resulting in the ‘othering’ of all that do not fall within the perimeters. Though strategic litigation has brought same-sex couples in Europe and the US some gains, the results have not led to the enjoyment of full equal marriage rights. For these reasons, in the dissertation, I propose a ‘queering’ of the courts and their equal marriage rights cases. This can take place for instance through abandoning the binary-normativity or by applying a more thorough or consistent application of the principle of dignity. Courts could also take the Yogyakarta principles as a starting point for their interpretation. These are a set of international principles specifically relating to sexual orientation and gender identity and established as a universal guide to interpret binding international legal standards with which all states must comply.
Conclusion
‘Queering’ in this research has led to a more comprehensive understanding of the equal marriage rights case law driven by the queer needs of the LGBTQ+ community itself. Such approaches can contribute to a more inclusive idea of the universality of human rights by presenting perspectives that in the past may have been overlooked, unnoticed or unseen. Considering the outcomes of the cases result in far-reaching legal and societal consequences, queering any underlying assumptions and/or beliefs that courts may hold could possibly indeed lead to a queerer, more universal and inclusive understanding, and interpretation of the fundamental human rights involved. With ‘consensus’ on same-sex marriage on the rise (due to an increasing amount of states opening up marriage for same-sex couples), courts will soon have to change their heteronormative ‘orientation’ to keep up with societal changes. Until then, the enjoyment of full equal marriage rights is only for the heterosexually privileged.
Bio
Dr. Masuma Shahid is an assistant professor in AI, queer data and LGBTQ+ rights at the Erasmus School of Law (Erasmus University Rotterdam). She is a co-coordinator of the LGBTQ+ Working Group of the Berkeley Center on Comparative Equality and Anti-Discrimination Law (BCCE) and a member of the Advisory Council of the Global LGBTQ+ Rights Commission of Kaleidoscope International Trust.