If we asked you to name a human rights issue, chances are you probably wouldn’t talk about sex. The Human Rights Court, however, has just waded into the bedroom and made a ruling on exactly that. Namely, that sex is just as important for women over 50 as it is for younger people.
A judgment on the importance of sex for women over 50 made headlines across the world. At a first glance, the subject seemed like a departure from the court’s usual cases. But there’s more to this judgment than meets the eye. It involves ideas about gender and age that go straight to the heart of human rights.
Right, So Give Me The Facts…
The case centred around Maria Ivone Carvalho Pinto de Sousa Morais, a Portuguese woman who was treated in 1995 for the vaginal condition bartholinitis. Basically, this is when glands around the vagina become inflamed and, can sometimes require an operation.
However, in this case, the operation went wrong, leaving Morais with nerve damage. As a result, she suffered from considerable pain, incontinence, and depression. The physical effects also left Morais unable to have sex. She sued and, in 2013, the hospital was ordered to pay €80,000 in compensation for her physical and mental distress. She was also awarded €16,000 for a maid to assist her with daily routines.
An age when sex is not as important as in younger years, its significance diminishing with age.
Judges in Portugal’s Supreme Administrative Court
However, following an appeal, Portugal’s Supreme Administrative Court reduced the total compensation to €56,000. The judges found that Morais was already in pain and depressed prior to the operation, although her situation was made worse by nerve damage. The court observed that Morais had two children and was over 50 at the time of the operation – “an age when sex is not as important as in younger years, its significance diminishing with age.” The judges also argued that she was unlikely to need a full-time maid as her children were grown and she “probably only needed to take care of her husband.”
The ruling provoked outrage in Portugal, with the government admitting “an unfortunate use of terms” in the judgment. Despite the outcry, the government argued that the ruling ought to be respected given its overall reasoning. Morais was not impressed. She took her case to the Human Rights Court, arguing she had been discriminated against on the basis of her age and gender.
What Does the Law Say About All This?
Morais’ case rested on Article 14 (prohibition of discrimination) and Article 8 (right to respect for private and family life) of the Human Rights Convention.
The Human Rights Court emphasised that Article 8 is a broad concept which “covers the physical and psychological integrity of a person and, to a certain extent, the right to establish develop relationships with other human beings.”
Ultimately they ruled in favour of Morais by a majority five to two, stating: “The question at issue here is not considerations of age or sex as such, but rather the assumption that sexuality is not as important for a 50-year-old woman and mother of two children as for someone of a younger age.”
The court cited two similar Portuguese cases where men in their 50s had been awarded higher amounts compensation than Morais. The original decision, said the Human Rights Court, demonstrated “prejudices prevailing in the judiciary in Portugal.”
This reflects a traditional idea of female sexuality as being essentially linked to childbearing purposes
Human Rights Court
The court found that age and gender had played a decisive role in the Portuguese ruling, stating that it “reflects a traditional idea of female sexuality as being essentially linked to childbearing purposes and thus ignores its physical and psychological relevance for the self-fulfilment of women as people.” This attitude went against the grain of egalitarianism in the Human Rights Convention. The original ruling was therefore discriminatory and violated Article 14.
The court ordered Portugal to pay Morais €3,250 in damages and €2,460 in costs and expenses. Following the ruling, Morais plans to fight for higher compensation in Portugal.
While the ruling sadly doesn’t guarantee good sex for everyone, it does underscore the importance of equal treatment in human rights law.
