What does it mean to be legally equal in a world where laws are often written from a heteronormative and binary perspective on humanity? This question is central to the PhD research of Masuma Shahid, PhD candidate at Erasmus School of Law. The research focuses on 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) handle equal marriage rights for LGBTI+ persons. Shahid explains what sparked her interest in the topic: "Judicial decisions on same-sex marriage and other rights and benefits associated with recognising various forms of relationships - so-called 'equal marriage rights' - vary widely, even though they often deal with the same or similar legal issues. This made me curious about the reasons behind these differences and why judges interpret legal provisions differently when it concerns same-sex couples or other sexual minorities claiming such rights compared to heterosexual couples. Given that few people in Europe research this topic, I saw great potential in it, especially with my background in European law." On 23 May 2025, Shahid defended her dissertation, 'Queering Courts: Analysing the Equal Marriage Rights Case Law of the European Court of Human Rights, the Court of Justice of the European Union and the United States Supreme Court'.
A queer perspective on law
What sets Shahid's research apart is the comparison between the ECtHR, the CJEU, and the US Supreme Court. "What further distinguishes and makes this research relevant is that the analysis is conducted through the lens of 'queer theory', specifically 'queer legal theory', by deconstructing legal language," she explains. Critically examining how language is used in judicial decisions makes it clear how normative assumptions about sex, gender, or sexuality influence legal reasoning. Queer legal theory, which originates from queer theory and critical legal studies, challenges these assumptions and reveals how the law affirms or excludes certain norms. Shahid elaborates: "Queer legal theory is a branch of legal scholarship that critically examines how the law regulates, affirms, and often marginalises norms surrounding gender and sexuality." This approach allows her to analyse judicial reasoning and expose which groups are excluded from legal equality.
Three courts, three types of logic
One of the core elements of her research is comparing how the ECtHR, the CJEU, and the US Supreme Court handle equal marriage rights. It turns out that cultural, political, and institutional contexts play a major role in how legislation is interpreted and applied. Shahid states: "There are many differences that mainly stem from the differences in legal systems." For instance, she emphasises that the CJEU predominantly operates from an economic logic: "The CJEU promotes the EU's economic integration agenda, which is evident in the cases concerning equal marriage rights, which are often resolved based on internal market principles."
The ECtHR, on the other hand, is more cautious, according to Shahid, "because this is a sensitive issue for the larger number of member states of the Council of Europe that must be kept on board." Moreover, the Council of Europe lacks the enforcement mechanisms that the EU has. If ECtHR rulings are seen as too radical, states can easily ignore them, undermining the Court's and the Council's credibility. For that reason, the ECtHR tends to favour alternative legal recognitions of same-sex relationships, such as registered partnerships or cohabitation contracts, to leave the sensitive institution of 'marriage' untouched. However, according to Shahid, this poses a problem: many rights and benefits, such as tax breaks, social security, and housing, are tied to marriage. When these are denied to same-sex couples based on formal distinctions, it results in actual inequality and systemic discrimination.
In the US, where cases reach the Supreme Court when constitutional rights are at stake, decisions are heavily influenced by the political composition of the Court. Legalising same-sex marriage in the Obergefell ruling was made possible by a less conservative Court. At that time, more justices had been appointed by Democratic presidents. However, Shahid warns: "The current Supreme Court is considered the most conservative in over eighty years."
Reversal of rights in the United States
In this context, the rollback of certain rights during Trump's presidency is no coincidence but part of a broader legal and political trend. "There is a general retreat from policies around diversity, equality, and inclusion in the US," says Shahid. The consequences are tangible: "Cases being filed now could reach the Supreme Court in time." There is a genuine concern that the conservative majority may try to overturn previously secured rights, such as abortion and same-sex marriage. In fact, the right to abortion was already overturned in the Dobbs decision, in which the Court also suggested that LGBTI+ cases should be reconsidered. Shahid explains: "In the case of a federal overturn, it is up to the 50 individual states to regulate or prohibit such rights. Currently, 35 states still ban same-sex marriage. That is why, ahead of a potential Trump re-election, thousands of same-sex couples rushed to marry, seeking legal certainty in case of an overturn. Congress also passed the 'Respect for Marriage Act' to ensure that same-sex couples retain the right to recognition of marriages performed in other states. Still, couples in 35 states must travel to another state to marry, then return and hope their marriage will be recognised, let alone expect equal rights in terms of benefits or allowances." Shahid stresses that the protection of LGBTI+ rights should not depend solely on political majorities but must be rooted in fundamental principles and human rights.
Dignity as a guiding principle
One such principle is 'dignity'. According to Shahid, this concept is crucial for protecting sexual minorities. "The principle of dignity is enshrined in many international legal frameworks and can offer better protection to LGBTI+ persons because it underscores the universal dignity of every human being, regardless of their sex, gender, sexuality, or sexual orientation. Many other rights, such as equality and non-discrimination, are built upon it." Shahid notes that cases in all three jurisdictions where dignity was central were more likely to be decided in favour of same-sex couples and sexual minorities, as it allowed for a more objective application of the law beyond religion, culture, or tradition. The Yogyakarta Principles, which address the rights of LGBTI+ persons and the queer community at large, also play an important role. "Although considered soft law and not legally binding, these principles are frequently cited by judges worldwide," Shahid explains. Combined with dignity, equality, and non-discrimination, these principles help shape more inclusive rulings aligned with universal human rights.
Binary and heteronormative
Nonetheless, legal practice often lags behind these ideals. Many judges still rely on binary and heteronormative definitions of gender and sexuality, with direct consequences for LGBTI+ persons. Shahid explains: "Regarding sex, many judges only recognise 'men' and 'women' and associate specific behavioural expectations with these categories." People who deviate from this norm by being non-heterosexual or having undergone a gender transition are often excluded unless they conform to the traditional image of a heterosexual couple.
Even positive developments, such as rulings granting more rights to trans persons, remain confined within this traditional norm. "The ECtHR has shifted its view in more recent cases involving trans persons wishing to marry," Shahid notes, "but only if the person wants to marry someone of the opposite sex after their transition. These interpretations are very limiting for LGBTI+ persons, who are expected to assimilate into heterosexual norms rather than being evaluated based on their unique circumstances when asserting equal marriage rights." In short, the traditional model still reigns supreme.
A queer approach to legal interpretation
For that reason, Shahid advocates for a fundamentally different approach: a queer approach to legal interpretation. "A queer approach involves critically examining who sets norms, who benefits from them, what interpretive methods are used, and for whom they are favourable," she states. In practice, this means concepts like sex, gender, and sexuality should no longer be seen as fixed categories but as a spectrum. Shahid: "This ensures that when determining the applicability of a right, such as the right to marry, the spectrum is used as the starting point instead of hetero- and cisnormativity."
She also points out that we should question whether commonly used interpretive methods are suitable for sexual minorities. "For instance, the ECtHR often uses a consensus-based approach to assess whether states have certain positive obligations. Nevertheless, when it comes to sexual minorities, a majority consensus across Europe or the EU often does not exist. In such cases, other principles, such as dignity, equality, proportionality, and the Yogyakarta Principles, must guide judicial decisions."
Research with impact
After seven years of research alongside a full-time job, Shahid is proud of the result: "The fact that I carried out this research one day a week alongside full-time teaching duties and was able to complete it gives me immense satisfaction." Her dissertation will be published later this year as a monograph and is already available in the library of the Dutch Supreme Court. She is also working on a second edition of her book 'Understanding European Law', developing a three-day 'Executive LGBTQ+ Rights Course', remaining active in academia, and will soon begin supervising a PhD candidate herself. She hopes to inspire other legal scholars to reflect on legislation and interpretation regarding LGBTI+ rights critically. For Shahid, it is all about impact. "Ultimately, you want your research to make a difference, so I hope it reaches the judges who matter."
- PhD student
- More information
Consult Shahid’s full research here.
- Related education
