Interview | María Elósegui Itxaso

Are you in favor of gay marriage? “I’m not going to answer that”

The first Spanish female judge appointed to the European Court of Human Rights says her beliefs on homosexuality will not influence legal rulings

María Fabra
María Elosegui in her office at the Law School in Zaragoza.
María Elosegui in her office at the Law School in Zaragoza.ANDREA COMAS

María Elósegui Itxaso describes herself as “atypical.” On Tuesday, she became the first Spanish female judge to be appointed to the European Court of Human Rights (ECHR). Hours later, her homophobic attitudes came to light.

The 60-year-old has a long resume. She has a doctorate in Law and Philosophy. She is a visiting professor at universities in Canada and the United States. She has collaborated on legislative projects with the Spanish Socialist Party (PSOE), the Aragon Party and the ruling Popular Party. And, among other things, she has worked for five years on the European commission against racism.

Question. You are the first Spanish woman to be appointed as a judge on the ECHR despite having the lowest chances. Do you feel like a token choice?

Answer. No, although it wouldn’t bother me if I was. I normally have a better resume than the men I compete against. I have reached the same level, not with equally good but rather double the experience. That’s why I don’t mind if they say this is affirmative action for equal merit and I have no fear of them saying I have been given the role because I am a woman.

I don’t believe I have said the quotes that are attributed to me. They have twisted my words

Q. How did you go from being the candidate with the least chance to the one who was chosen?

A. I don’t have details or privileged information about how the appointment process took place. I was not put forward on an equal footing because of the question of influence, but I am already known in the parliamentary assembly. I have been working there and these things are shown by working. The jurists have seen me work. They have read my CV and they not let themselves be carried away by cliches or stereotypes. I think that it what has happened. I don’t know if I will ever know who voted for me.

Q. What do you think you can bring to the court?

A. My sensitivity to the struggle for human rights, not only from a theoretic and academic point of view, but also by trying to contribute to real social changes with skill – without getting involved in political or social activism but instead contributing to the equality law or fighting for month-long paternity leave, for example. Or on issues relating to stopping racial discrimination. I have worked a lot on immigration issues and those concerning regional, cultural and ethnic minorities. I am in touch with diversity. I have worked with people from different cultures and religions and I can share this sensitivity. It’s not just an academic issue.

Q. This is a commission against intolerance, but there are quotes from your work that express some very sharp opinions, for instance when you say that homosexuality is an illness.

María Elósegui was received 114 to be appointed to the ECHR.
María Elósegui was received 114 to be appointed to the ECHR.JAVIER BELVER (EFE)

A. I have not worked specifically on homosexuality but I have on transsexuality. These are things that must be studied rigorously, you have to look at what science and medicine is saying on the matter. Even within the gay community, there were different positions on the sex-change law. Some agreed with the demand for an irreversible surgery and wanted Social Security to cover the cost of it, and others supported transition but not irreversible gender reassignment surgery. I studied the medical consequences and positioned myself more with those against an irreversible operation. I did say that and now it can be manipulated. You have to watch the entire film. I don’t believe I have said the quotes that are attributed to me. They have twisted my words.

Q. But do you believe homosexuality is an illness?

A. No, I don’t think homosexuality is a source of illness. I think the origins of homosexuality are being investigated and there are many theories. But none I think that has been proven. There are also different positions within the gay community. People make choices in their lives and this is one more choice.

Q. You have also said you are “against gay ideology.”

A. I couldn’t have said that because I don’t use the term ideology. There are various anthropological positions and there always will be. It is a question of anthropology not ideology, it is a life philosophy.

Q. But do you believe gay people have a common “life philosophy”?

A. Some believe that sex is a cultural construct that can be built and that nothing before conditions us, no conditioning before biology. That is one theory. How much comes from nature and how much from culture. Some say it is genetic and others say it is a choice. They do not have just one theory and that is normal. There is an evolution, a debate and things that are not agreed on.

People make choices in their lives and homosexuality is one choice more

Q. It’s known there are different theories, but what do you think? Your beliefs could now be reflected in the court resolutions.

A. My anthropological theory is irrelevant because I have to apply European Convention and the current norm independently of what I think. As a judge, I have to apply the law, I can’t apply theories. There is no danger, I cannot be biased, I have to apply what there is, whether I like it or not. I can’t discriminate against anybody because of their sexual orientation or gender orientation. The public should rest easy.

Q. Are you in favor of gay marriage?

A. That’s a compromising question. It’s not about being in favor or against. I am not going to answer. I am not going to give a black or white answer. As a judge, I have to respect the law. I don’t agree with judicial activism and I have criticized rulings for that.

Q. But you have already said you are against gay marriage.

A. You would have to look at what I have said.

Q. There is no reference to you coming out in support.

A. I will have to apply the law independently of whether I like it. It is not a question of taste and opinions. The people may not agree but I think it doesn’t matter.

Q. You don’t think beliefs influence the application of the law? The law has to be interpreted.

A. There is some margin for interpretation but there are also cornerstones in law that do not leave any room for doubt. A judge cannot distort the law to apply it in line with their personal opinions. We must not perform judicial activism.

Q. Do you belong to Opus Dei and has the organization has lobbied in your favor?

I will have to apply the law independently of whether I like it or not

A. These are personal questions. A person can have values and convictions and this does not mean they are going to be less democratic.

Q. You have worked a lot on equality issues. In what area is inequality the worst?

A. In care work and in the family. Women take on more hours and have less time for their profession and leisure.

Q. That may be the most widespread issue but what is the worse?

A. Indirect work discrimination and the failure to see the merits of women. This is not because men have superior genes, it is not genetic or biological but cultural.

Q. Do you consider yourself a feminist?

A. I would have to say I do but I am not against men.

English version by Melissa Kitson.

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