The case concerned whether the Government of Austria had discriminated against Austrian citizens who were in same-sex relationships because the wording of the Austrian Civil Code (German: Allgemeines bürgerliches Gesetzbuch) did not permit unmarried same-sex couples access to legally granted second-parent adoptions, whereas it was available to unmarried heterosexual couples.
In 1999 the ECtHR ruled that in the context of awarding custody to one parent or another, difference in treatment based solely on considerations of sexual orientation was impermissible by the ECHR.
[6] In that case the ECtHR found that denying a single homosexual man the right to adopt a child did not violate the ECHR.
In E.B and France, the ECtHR distinguished the case from Frette finding that making a distinction based on sexual orientation was impermissible under the ECHR.
The domestic court argued that the father refused to give his consent and that the adoption requested by them was in any case not possible under Austrian law.
Upon that verdict, X and her partner applied to the Constitutional Court of Austria to have the s179 declared unconstitutional because it discriminated against them on the basis of their sexual orientation.
They argued that in the case of an opposite-sex couple, the District Court would have carried out a detailed examination (as to whether override the father's refusal or not) and would have had to deliver a separate decision on this issue.
[14] The Court distinguished Gas and Dubois v. France finding there was no legitimate and proportionate aim in restricting second-parent adoption to unmarried heterosexual couples.
X and her partner were found to have been discriminated against as they could not obtain a second-parent adoption but unmarried couples living together in a stable heterosexual relationship could.
Article 8 provides[15] that “everyone has a right to respect for his family and private life, his home and his correspondence” and Article 14 prevents discrimination based on any grounds such as “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
[17] The margin of appreciation is a legal concept in the EU jurisdiction that takes a relativist stance to issues of human rights in differing European States.
[19] It chose to frame ‘’X and Others v. Austria’’ narrowly, as a matter of alleged discrimination between unmarried heterosexual and homosexual couples, rather than a ruling on the issue of second-parent adoption.