Same-Sex Couples under the International Right to Marry: Some Recognition of their Right but More Recognition for their Exclusion from it and for their Existing Marriages

Abstract

This analysis, both of the textual history of the international human right to marry and of the international case law on same-sex marriage, argues that this right does not exclude same-sex couples. The words ‘men and women’ in this right were not inserted to codify heterosexual exclusivity, but to emphasize equality of women and men. Several international human rights bodies now consider this gender-neutral right applicable to same-sex couples, but still allow countries (at least for some transitional period) to keep excluding them from marriage. With the growing number of countries opening up marriage, and with the increased focus on non-discrimination on grounds of sexual orientation, two trends in international law have emerged: to require some alternative recognition when same-sex couples are excluded from marriage (e.g. cohabitation rights or registered partnership), and to require recognition of existing same-sex marriages (including foreign marriages, and marriages where a

transgender spouse changes legal gender).​​​​​​​

The printed version of the book was published in November 2025. Electronic version of the 22 page chapter was published in January 2024 (and is now also available via for example Leiden University Library).