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Transnational LGBTI Activism and the European Courts: Constructing the Idea of Europe
Abstract
In the famous words of former judge Pierre Pescatore, the Court of Justice of the European Union (ECJ) has always been inspired by “une certaine idée de l’Europe,” meaning that the judges defined their mission as contributing to an ever-closer union between the peoples of Europe (Pescatore 1983: 157). This and similar statements have led to criticism among legal scholars, constitutional courts, and governments. They have questioned the activism of the judges, which, it is argued, could turn the ECJ into another European human rights court whereas its mandate was to contribute to market integration by enforcing intergovernmental bargains and resolving trade-related disputes (Garrett 1995).
... 12 As Robert Wintemute has indicated in his research, the emphasis from 'basic rights' started to shift more towards 'sex rights', and later to 'love rights'. 13 ...
... 12 See for a great overview of LGBTQ+ related cases before the ECtHR Johnson's book 'Homosexuality and the European Court of Human Rights': Johnson [3]. 13 Wintemute [15]. 14 fore allowed. ...
The legalisation of same-sex marriage has taken off globally in the last thirty years, especially in Europe; thirty-three countries around the world, nineteen of which are in Europe, have opened up civil marriage to same-sex couples. The Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have also had their share of equal marriage rights cases before them to decide upon. This contribution discusses the role the two European courts have played in this field and how their case law has developed, in somewhat parallel stages, throughout the years.
... What is more, the accusation of the EU of homonationalist practices against its own eastern member states might have a detrimental effect on their queer communities. In Poland, like in other CEE countries, many LGBTQ + people have seen European integration as a process conducive to their emancipatory pursuits (Ayoub, 2016;van der Vleuten, 2014). Presenting the EU as a homonationalist agent of western (neo)imperialism perfectly fits in with the rhetoric of PiS and makes it easier for the party to make Poland's queer community a hostage of Kaczyński's nationalist ideology. ...
The article historicizes social and state practices that Jasbir Puar dubbed “homonationalism.” It argues against simplistic applications of the term to the relations between “western” and “eastern” European countries. Instead, it appeals for a more profound contextualisation of every national case. Using 20th-century Poland as a case study, it demonstrates that both homophobia and homonationalism had antecedents and that both can be used as political strategies by nationalist actors that have not previously deployed them. It also seeks to decentre the narrative about homonationalism by averting attention from the state and focusing it on lived queer experiences in Poland. The term grassroots homonationalism is an attempt to bring such analytical attention to the agency of queer subjects and their communities. It aims to conceptualise their attitudes toward nationalist discourses and state practices (both homophobic and homonationalist) and expose ways in which non-normative sexualities and their history have been politically instrumentalised. It helps to analyse attitudes that some queers in Poland have adopted when facing the issue that Puar described as a “collusion of nationalism and queer subjects”.
... LGBTIQ people are -for better or for worse -centrally present, be it about value conflict and change in norms (Kollman, 2007;Wilkinson and Langlois, 2014;Paternotte, 2015;Ayoub, 2016), the stickiness of national identity (Chetaille, 2011;Ayoub, 2014;Kamenou, 2019;Swimelar, 2019), the promotion of human rights (Browne and Nash, 2014;Chase, 2014;Langlois, 2015;Wilkinson, 2015), the political power of media (Szulc and Dhoest, 2013;Persson, 2015;Garretson, 2018), contests within intergovernmental organisations (Swiebel, 2009;Mos, 2014;Slootmaeckers et al, 2017;Voss, 2018;Ayoub and Paternotte, 2019), backlash to liberalism (Flores and Barclay, 2016;Kuhar and Paternotte, 2017;O'Dwyer, 2018;Verloo, 2018), social movement outcomes on institutions and culture (Egan and Sherrill, 2005;Ayoub et al, 2021), the politics of health (Altman, 2003;Stockdill, 2003;Bosia, 2006;Broqua, 2015), or religion and the state (Ramet, 2006;Burack, 2008;Wilson, 2013;Dreier, 2018). Studies about LGBTIQ politics also tell us much about policy diffusion (Kollman, 2009;Ayoub, 2016;Velasco, 2018), representation and elections (Reynolds, 2013;Haider-Markel et al, 2017;Magni and Reynolds, 2018;Hunklinger and Ferch, 2020;Turnbull-Dugarte, 2020;Schotel and Mügge, 2021), foreign policy (Burack, 2018;Thiel, 2020;Carlson-Rainer, 2021), public opinion (Lewis and Gossett, 2008;Takács and Szalma, 2011;Bishin et al, 2016;Broockman and Kalla, 2016;Abou-Chadi and Finnigan, 2019), migration (Mayo-Adam, 2017; Ayoub and Bauman, 2019;Hamila, 2019; Mole, 2021), political economy (Andersen and Fetner, 2008;Badgett, 2020), political psychology (Harrison and Michelson, 2017;Page, 2018), political parties (Siegel and Wang, 2018;Bishin et al, 2020) and the courts (Burgess, 2009;Engel, 2011;Helfer and Voeten, 2014;van der Vleuten, 2014). In fact, few movements have reached comparably rapid levels of socio-legal ...
Despite both unparalleled progress on and persistent backlash to LGBTI rights in world politics, LGBTIQ people are rarely centred in our work as political scientists. This article charts the status of LGBTIQ scholarship in political science, advocating the creation of new spaces for such scholarship in the field, including in the pages of journals like the European Journal of Politics and Gender . Drawing on recent studies of the profession and on the reflections of leading LGBTIQ thinkers on navigating their presence in the subfield, I argue that LGBTIQ scholars and their scholarship still face individual-level and structural discrimination in political science. This encompasses active and passive homophobia and transphobia in teaching, getting hired and promoted, gaining access to research funding, and the publication process.
Key messages
The article charts a brief history of the status of LGBTIQ scholarship in political science.
The article advocates for new spaces for such scholarship in the field, including in the pages of journals like the European Journal of Politics and Gender .
The article draws on recent studies of the profession and on the reflections of leading LGBTIQ thinkers on navigating their presence in the subfield.
The article argues that LGBTIQ scholars and their scholarship still face discrimination in political science, and that this neglect is not without consequences for knowledge production in the field. </ul
... Lesbian, gay, bisexual, and transgender (LGBT) 3 issues offer a revealing lens on the adoption of European values at the societal level. First, safeguarding LGBT rightsespecially freedom from discriminationhas emerged as a core EU norm in recent years (Ayoub and Paternotte 2014;Slootmaeckers and Touquet 2016;van der Vleuten 2014). Second, it is by nature a policy area that requires a firm basis in prevailing social attitudes if it is to have practical effect. ...
How does exposure to EU integration affect social attitudes in third countries, and what is the role of education in this process? These questions matter because the EU aspires to be not only a regulatory regime but also a community of values. Addressing both the common elision of attitudes and the underappreciation of education in Europeanization research, this article analyses the EU's impact on attitudes towards homosexuality in third countries via national education systems. This article offers not only an exposition of how we can expand our theoretical framework to include the transmission of values; its empirical findings demonstrate the need for this exercise, as some of the literature's underlying assumptions are shown to be unsupported.
... In fact, the European Court cannot force the view of a small minority of states on the rest of the CoE because '[i]f it were to do so, governments may threaten to leave the convention system, thus leaving the European human rights regime worse off'. 69 In other words, the more CoE member states allow further recognition, the more likely the European Court will follow through in granting increasing human rights' protection to LGBT couples. ...
On 30 June 2016, the European Court of Human Rights (hereafter ‘European Court’) decided that a binational same-sex couple was discriminated against because they were not allowed to marry; and at the same time, they were unable to live in Italy as a couple. For nearly one decade, human rights non-governmental organizations (NGOs) have submitted third-party interventions asking the European Court to recognize that unmarried same-sex couples should be treated differently from unmarried different sex couples when the first have no possibility of marrying. This article argues that the European Court has finally accepted what the NGOs have suggested since 2007, and that the decision in Taddeucci and McCall v. Italy signals a positive step forward from the ‘analogous situation’ doctrine towards recognizing indirect discrimination on the grounds of sexual orientation for same-sex couples.
From the rise of populist leaders and the threat of democratic backsliding to culture wars, the rejection of open markets and the return of great power competition, the backlash against the political, economic, and social status quo is increasingly labeled “illiberal.” Yet, despite the increasing importance of these phenomena, scholars still lack a firm grasp on “illiberalism” as a conceptual tool for understanding contemporary trends. The Oxford Handbook of Illiberalism addresses this gap by establishing a theoretical foundation for the study of illiberalism and showcasing state-of-the-art research on this phenomenon in its varied scripts—political, economic, cultural, geopolitical, and civilizational. Bringing together the expertise of dozens of scholars, the Oxford Handbook of Illiberalism offers a thorough overview that characterizes the current state of the field and charts a path forward for future scholarship on this critical and quicky developing concept.
The Marriage Equality Act (2017) provides an example for Chancellor Angela Merkel's strategy of ‘leading from behind’ in the form of evolved facilitation as she changed her stance from publicly resisting to enabling this policy. Merkel's objections against marriage equality were shared by large parts of the Christian Democratic Union/Christian Social Union (CDU/CSU): A draft version of the bill was postponed for two years in the justice committee due to internal conflicts in the CDU/CSU. Scholars argue that Merkel's shift from blocking to enabling the reform has been influenced by international as well as domestic developments. The focus of this paper is on a domestic factor that has been neglected so far, namely interactions between the far right and the conservative camp. Based on data from a case study on ‘anti-gender’ mobilisations against marriage equality in Germany and their influence on the parliamentary process, this article analyses shifts in the conservative camp.
German governments, dominated by the conservative CDU/CSU, have historically not been at the forefront in recognising LGBTI rights in Europe. Yet, significant advances have occurred under Angela Merkel’s leadership since 2005. This article seeks to understand the conditions under which these unexpected advances have occurred, to what degree Merkel and her government facilitated or obstructed them, and which groups benefitted from these advances. I use parliamentary questions, coalition agreements and party programmes to map the expansion of LGBTI rights and the forces Merkel and her government had to navigate. Comparing the four terms of Merkel’s chancellorship, I find that she played a passive or indirectly facilitating role, only moving on LGBTI issues when pressured by international norms, the Federal Constitutional Court or electoral pressure. Although LGBTI interests are increasingly visible on the political agenda, the advances made did not benefit all groups under the LBGTI-umbrella equally, as bisexual, trans* and intersex interests remain mostly invisible. Taking a birds-eye view of Merkel’s chancellorship I illustrate how and what kind of change can occur under conservative-led governments.
This contribution explores how the Council of Europe (CoE) – and the European Court of Human Rights (Strasbourg Court), in particular – have addressed the increasing number and complexity of applications involving sexual minority asylum claims (SMACs). The law and policy produced by the CoE and the jurisprudence of the Strasbourg Court immensely influence how domestic authorities address SMACs, so it is crucial to have a thorough understanding of this framework.
Indeed, the CoE has acquired a progressively significant role in the field of asylum. Although it does not have an asylum policy as such, several of its bodies have taken a noteworthy role in this field, such as the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). The Strasbourg Court, above all, along with the now extinct European Commission of Human Rights, developed a strong line of jurisprudence that applies the European Convention on Human Rights (ECHR) to asylum claimants, despite the ECHR not possessing any norm explicitly related to asylum.
More specifically, the Strasbourg Court was the first judicial instance at a European level to decide on cases relating to SMACs. It has so far dealt with at least 23 separate cases of asylum on grounds of sexual orientation. Many of these cases led to contentious and inadequate decisions, such as the 2014 judgment in M.E. v. Sweden, which gave legitimacy to the idea that applicants can be sent back to their countries of origin and asked to be ‘discreet’ about their sexuality. This approach reflects a worrying detachment from the realities of sexual minorities in many countries around the world and from their experiences when claiming international protection in Europe.
This contribution thus critiques the CoE policy and Court’s jurisprudence in this field, whilst advancing policy and legal recommendations that can adequately address the socio-cultural and sexual diversity of asylum claimants from a queer intersectional perspective.
Although international proclamations increasingly recognize legal sex beyond binary categories, domestic legislation is lagging behind. Germany and the Netherlands are the first countries in Western Europe where courts have ruled in favour of a third option. While the German constitution was amended to guarantee a third option, the Dutch government has refrained from implementing comparable legislation. What explains this difference? This article draws on parliamentary debates, newspapers and statements from activists to follow the trajectory of the third option. Building on literature on intersex rights legislation and the diffusion of LGBT rights norms, we find that an established progressive reputation can lead states like the Netherlands to take a back seat, while mobilization by activists was crucial in establishing the self‐determination of legal sex on the German political agenda. Our study contributes to unravelling the complex ways in which new norms shape – or fail to shape – domestic political outcomes.
This thematic issue analyses trans* politics, and the problems and policies articulated by societal, political and legal actors in national and international contexts in Europe and Latin America. Trans* issues are at the heart of politics concerning sex and gender, because the sex binary ordering is producing the categories, identities, and related social relationships around which gender inequalities are constructed. Scholarship on trans* politics promises to bring more fundamental knowledge about how the gender binary organisation of our societies is (dis)functional, and is therefore relevant and beneficial for all gender and politics scholarship. Contestations around trans* issues continue developing, between state and non-state actors, transgender people and medical professionals, and also among and between social movements. This thematic issue is our contribution to dimensions of trans* politics that revolve around the issue of sexed and gendered bodies (the making and unmaking of “deviant” bodies, non-binary language about bodies, and voice given in bodily re/assignments), the limits of recognition (undermining of trans* agency, persistent binary thinking, and disconnect with material dimensions of gender justice), and the potential of trans* movements (processes and practices through which political claims are generated in the movement, a more forward looking and pro-active perspective on the possibility of alliances between the feminist and the trans* projects, and between the trans* project and the disability project, and alliances of movement actors with institutional power holders such as international courts).
La práctica, cada vez más extendida en los tribunales internacionales de derechos humanos, de superar la letra y el espíritu de los tratados internacionales que han de interpretar, y de reconfigurar unilateralmente su contenido obligacional sin respetar los procedimientos previstos de reforma, está modificando sustancialmente el derecho internacional de los derechos humanos. La interpretación se convierte, de este modo, en una práctica demiúrgica que crea ex novo y sin fundamento legal nuevos derechos (o incluso, pretendidos e inexistentes “derechos”) que no sólo no se contienen en los tratados, sino que, en no pocos casos, pueden minar seriamente el contenido sustancial de derechos explícita y generalmente reconocidos como fundamentales. La incertidumbre jurídica y los altos riesgos de interpretación ideológica y arbitraria de los derechos que genera este activismo judicial se añaden a la vulneración de principios tan básicos como el consentimiento del Estado Parte como fuente de obligaciones internacionales convencionales. La integridad de los derechos humanos exige que los tribunales internacionales abandonen tales prácticas arbitrarias, respeten los límites de su mandato interpretativo otorgado y dejen de operar de facto y abusivamente como órganos legisladores
The Employment Equality Framework Directive (EED) is the first and still the only EU law that requires EU member states to combat sexual orientation discrimination. It requires states to change employment laws or draft news ones that prevent employers and coworkers from discriminating against gay and lesbian employees. Implementation of the EED was problematic, despite strong support for the law among many EU member states and their publics. An analysis of the EED’s provisions shows that in countries where religious organizations provide a substantial share of a country’s social services, governments are more likely to transpose the directive incorrectly. These findings are based on an innovative research design that addresses one legal subject matter within a directive. Contradicting earlier research showing it has little to no role, public opinion about an EU law can affect compliance. This article also sheds more light on how religious organizations and beliefs affect European integration, comparatively understudied in the literature. These findings also have important implications for the future of lesbian, gay, bisexual and transgender (LGBT) human rights legislation at the EU level.
Although a growing number of European governments have legalized same-sex civil unions (SSU) and same-sex marriage (SSM) in the past two decades, others have moved in the opposite direction by stalling partnership legislation or adopting constitutional amendments defining marriage as a heterosexual institution. Why do some European countries move forward with SSU/SSM policies while others do not? Few studies have examined the effects of party politics on partnership laws and those that do highlight the positive influence of Left parties. We revisit this question and suggest that SSU/SSM legalization depends not on governments’ traditional left/right positioning as commonly claimed, but on their preferences for ‘traditional’ versus ‘self-expression’ values. Using event history analysis, we show that governments favoring postmaterialist, self-expression values are more likely to legalize SSU/SSM, irrespective of where they are situated on the conventional left/right spectrum. Along with suggesting that competition over SSU/SSM has not been absorbed into the left/right axis, our findings show the importance of political ideology, and not just social movements or public opinion, for the advancement of LGBT rights in Europe.
The two and a half decades since unification brought about significant paradigm changes in German social policies towards lesbian, gay, bisexual, and transgender (LGBT) citizens including, inter alia, the legalisation of same-sex partnerships, an expansion of the rights granted to these same sex couples, and reforms allowing individuals to change their legal gender without divorcing or undergoing irrevocable surgeries. This article investigates developments that led the government of the Federal Republic, long dominated by socially conservative Christian Democrats, to extend greater rights to sexual minorities in the years following unification. The explanation lies in LGBT activists’ use of what van der Vleuten refers to as ‘pincer’ tactics, working not only at the national level but also at the European level to pressure reluctant domestic actors. Unification proved a critical juncture on both fronts, leading to the creation of a politically influential, pan-German LGBT organisation at the domestic level and to institutional changes conducive to LGBT activism at the European Union level. In the language of the introduction to this volume, unification had an indirect effect on LGBT rights, leading to a gradual increase in rights for sexual minorities, driven by a combination of activism from the ‘outside in’ and the ‘inside out’. This article ‘brings in’ the study of gender and sexuality to the literature on post-communist transformations.
This article builds on previous research on Europeanization and political opportunity structures (POS) for mobilization, to explore the processes of transnational LGBT (Lesbian, Gay, Bisexual, and Transgender) mobilization in the European Union (EU). In the case of LGBT activism, European integration affects contentious politics by altering POS – both vertically and horizontally – for mobilization and changing the tactics of LGBT activism. Using the cases of Germany and Poland to trace cross-border connections between norm entrepreneur and target state, the findings suggest that LGBT activism relies on transnational resources – primarily, social spaces and organizational capacity – that are scarce in many member states but readily available in others. These horizontal opportunities among member states, alongside top-down vertical ones provided by Brussels, serve as mobilizing structures that bring together distinct groups of international actors. Europeanization also alters the tactics that transnational actors use when engaging with authorities in the target state. Employing socialization mechanisms that highlight appropriate behavior, actors tactically frame their demands in a European discourse by associating the issue of LGBT acceptance with democratic responsibilities as members of the EU community.
This article examines how litigation before the European Court of Justice (ECJ) and European Court of Human Rights (ECHR) has contributed to the development of social rights. It argues that variations in the nature of supranational rights, powers of supranational courts, and ease of access influence the opportunities individuals have to engage these courts to enforce and expand entitlement to social protection. It demonstrates that individuals have pursued social-rights claims at a much higher rate before the ECJ than the ECHR but have also begun to respond to creative ECHR interpretation that extends social rights in directions not available under European Union law. In weaving together a complementary but not a comprehensive set of social protections, the two supranational courts are constructing a safety net that extends well beyond the original intentions of member countries and empowers some of the most vulnerable members of society.
Karen Alter's work on the European Court of Justice heralded a new level of sophistication in the political analysis of the controversial institution, through its combination of legal understanding and active engagement with theoretical questions. The European Court's Political Power assembles the most important of Alter's articles written over a fourteen year span, adding an original new introduction and conclusion taking an overview of the Court's development and current concerns. Together the articles provide insight into the historical and political contours of the ECJ's influence on European politics, explaining how and why the same institution can have such a varying impact across time and issue area. The book starts with the European Coal and Steel Community, where the ECJ was largely unable to facilitate greater member state respect for ECSC rules. Alter then shows how legal actors orchestrated an activist transformation of the European legal system-with the critical aid of jurist advocacy movements, and via the co-optation national courts. The transformation of the European legal system wrested from member states control over the meaning of European law, but the ECJ continues to have differential influence across issue area. Alter explains that different influence of the ECJ comes from the varied extent to which sub and supra-national actors turn to the ECJ to achieve political objectives. Looking beyond the European experience, the book includes four chapters that put the ECJ into a comparative perspective, examining the extent to which the ECJ experience is unique, or a harbinger of the future role international courts may play in international and comparative politics.
The Southern African Development Community (SADC) considers gender equality to be one of its central aims. Interestingly, SADC has adopted a relatively ‘holistic’ approach to gender since the outset. As SADC Executive Secretary, Tomáz Augusto Salomão, told the member state representatives:
Only when we realise full gender equality and equity will this be a community of well being, one in which we experience an improved standard of living and an enhanced quality of life. This will be a society marked by freedom, social justice, peace and security.1
Adopting legal–normative and political–governance perspectives, this article reviews the growing formal and informal relations that are developing between the EU and the ECHR human rights regimes, with a view to analysing the various reasons why the Luxembourg Court should rely on the Strasbourg Regime and on its jurisprudence in a more explicit, coherent, systematic and comprehensive manner. The article contends that such greater reliance may bring the EU abundant benefits in terms of enhanced and more coherent European human rights protection, reduced normative and jurisdictional tensions and resultant enhanced legitimacy, fairness, predictability, social and judicial acceptance and effet utile of the ECJ’s judgments. The article concludes that further desirable results of such a course of action would be improved and more harmonious relations with the EU Member States, the ECHR Members and the ECHR itself, and enhanced cohesive identity, internal and external legitimacy and global leadership.
The European Union today stands on the brink of radical institutional and constitutional change. The most recent enlargement and proposed legal reforms reflect a commitment to democracy: stabilizing political life for citizens governed by new regimes, and constructing a European Union more accountable to civil society. Despite the perceived novelty of these reforms, this book explains (through quantitative data and qualitative case analyses) how the European Court of Justice has developed and sustained a vibrant tradition of democratic constitutionalism since the 1960s. The book documents the dramatic consequences of this institutional change for civil society and public policy reform throughout Europe. Cichowski offers detailed empirical and historical studies of gender equality and environmental protection law across fifteen countries and over thirty years, revealing important linkages between civil society, courts and the construction of governance. The findings bring into question dominant understandings of legal integration. © Rachel A. Cichowski 2007 and Cambridge University Press, 2009.
Since 1989, twenty-three European countries have implemented same-sex union (SSU) laws. We argue that the political processes leading to the adoption of these policies have been shaped by international influences such as policy harmonization, elite lesson-drawing and most importantly by social learning fostered within transnational networks. We examine SSU policies in four West European countries—Germany, Austria, Belgium, and Spain—to illustrate how these international influences and transnational networks have shaped SSU policy outcomes, and argue that the workings of these networks resemble those of the “velvet triangle” policy communities identified by gender scholars.
This article focuses on the national and transnational strategies of five European Lesbian, Gay, Bisexual and Transgender civil society organizations (CSOs) pressing for equality and non-discrimination. We present three modes of interaction between CSOs and their political environment. The first mode we label ‘morality politics’. Arcigay in Italy and the Campaign against Homophobia in Poland are seemingly locked in this mode because they are confronted with a hostile and organized opposition, both in terms of public opinion and elite opinion. A second mode of interaction we label an ‘incremental change’ mode and is the strategy pursued by Stonewall in the United Kingdom and the Hatter Society in Hungary, marked by discreet elite level lobbying. Finally, we introduce a third mode of interaction we label ‘high-profile politics’. This mode is marked by highly visible public events, coalition seeking, cooperation with government, and transnational activity at the European level and abroad. This is a strategy possible by CSOs where there is a high degree of public support for equality and minimal partisan or religious opposition to the goals of the movement. The Dutch COC has been pursuing this ‘high-profile politics’ mode of interaction in their political environment over the past few years.
Human Rights Quarterly 18.1 (1996) 67-106
What are the characteristics of lesbian women and gay men, collectively, which have kept them outside most international human rights work? There are related factors of (1) continuing stigma; (2) poor organization; and (3) the understanding that many states will block initiatives in this area.
1. In almost all parts of the world, lesbians and gay men remain highly stigmatized minorities. Criminal laws against homosexual acts are still common, though declining in number. While homophobia is increasingly compared to racism and sexism, discrimination against lesbian women and gay men is much more widely accepted than other forms of discrimination. Religious objections continue to be cited to justify state sanctioned discrimination. While lesbian women and gay men are often perceived quite differently from each other, both groups are highly stigmatized.
2. Lesbian women and gay men lack effective organizations at the local, national, regional, and international levels. Of all minorities, lesbian women and gay men are perhaps the least likely to have effective organizations despite the large numbers of individuals involved.
(a) The minority is dispersed among the larger population. In the west, in the postwar years, gay men and, to a lesser degree, lesbian women have achieved a visible societal presence in particular neighborhoods in the larger cities.
(b) Unlike cultural minorities and many racial minorities, lesbian women and gay men have no natural institutions such as churches or schools which could give an institutional base for minority leadership.
(c) Support for lesbian and gay rights organizations runs counter to the dominant strategy employed by the majority of lesbian women and gay men, the strategy of passing as heterosexual in almost all social and work situations. No equivalent avoidance strategy is open to members of other minorities.
(d) Well-placed lesbian and gay individuals, who could counter negative stereotypes, generally do not disclose their sexual orientation. Western media does not identify them as lesbian or gay, even when their sexual orientation is known. Nor does the media report public statements identifying them as lesbian or gay.
(e) Heterosexually identified individuals are effectively discouraged from raising lesbian and gay issues because their own sexuality might be put in question. No similar problem exists for supporters of racial and cultural minorities.
3. It is widely understood that a significant number of States would block movement at the international level, often on religious grounds. States with Roman Catholic or Islamic majorities usually have difficulty with the issue. A Canadian representative recalled that "an older man from Kuwait almost fell off his chair" when Canada proposed adding "sexual orientation" to an equality provision in the drafting committee at the Vienna World Conference on Human Rights. Anti-Western rhetoric is also used to justify discrimination. Prime Minister Mahathir of Malaysia, speaking in the General Assembly, derided American-stye democracy for supporting the carrying of guns and the flaunting of homosexuality.
Movement on lesbian and gay issues is becoming possible at the international level because of the widespread changes that are occurring in state practice. Change is most striking in the "north," but evident now, as well, in many parts of the "south."
In 1948 Kinsey's study, Sexual Behavior in the Human Male, was published in the United States. Kinsey showed that male homosexuality was far more common than had been generally assumed: 37 percent of his sample of men reported sexual experiences with members of both sexes; 4 percent were exclusively homosexual during their entire life; 10 percent were more or less exclusively homosexual for at least three years between the ages of sixteen and fifty-five. While other studies have put some of Kinsey's figures in question, the study remains important in its presentation of homosexuality as a common variant condition, rather unremarkable if examined scientifically.
Criminal laws on homosexual acts existed in many jurisdictions, but not all. Countries whose criminal law derived from the Napoleonic Code drew no distinction between homosexual and heterosexual acts. As a result, some European states, even ones with Roman Catholic majorities like France and Spain, had no criminal provisions on homosexual activity. In others, reform occurred more recently...
Paralleling the institutionalization of human rights in European Community (EC) law is a growing body of literature on the use of strategic litigation by policy actors to expand or enforce those rights. Until recently however, relatively little scholarly attention has been paid to the full range of factors which influence the use of strategic litigation by organizational actors. This paper assesses existing explanations of strategy choice and finds that the emphasis on political and legal opportunity approaches and resource-mobilization explanations has led to a neglect of other, potentially important, variables. I aim to remedy this gap in the literature by suggesting that the identity politics and framing processes of a social movement may play a significant role in influencing the take-up of a litigation strategy. Case studies of the disability movement and the lesbian and gay movement in the United Kingdom illustrate how these variables can shape strategy choice.
Do international court judgments influence the behavior of actors other than the parties to a dispute? Are international courts agents of policy change or do their judgments merely reflect evolving social and political trends? We develop a theory that specifies the conditions under which international courts can use their interpretive discretion to have system-wide effects. We examine the theory in the context of European Court of Human Rights (ECtHR) rulings on lesbian, gay, bisexual and transgender (LGBT) issues by creating a new dataset that matches these rulings with laws in all Council of Europe (CoE) member states. We also collect data on LGBT policies unaffected by ECtHR judgments to control for the confounding effect of evolving trends in national policies. We find that ECtHR judgments against one country substantially increase the probability of national-level policy change across Europe. The marginal effects of the judgments are especially high where public acceptance of sexual minorities is low, but where national courts can rely on ECtHR precedents to invalidate domestic laws or where the government in power is not ideologically opposed to LGBT equality. We conclude by exploring the implications of our findings for other international courts.
Since 2003 the Employment Equality Directive (2000/78/EC) requires Member States of the European Union to prohibit sexual orientation discrimination in the field of employment. This book assesses to what degree the Directive’s requirements have been met by the twenty-seven Member States. The authors discuss the relevant aspects of EU law and provide a detailed analysis of the quality and conformity of national anti-discrimination legislation aimed at implementing the Employment Equality Directive. In this analysis special attention is paid to the implications of what distinguishes sexual orientation from other forbidden grounds of discrimination. Therefore the book focuses on the various private and public aspects of sexual orientation, such as preference, behaviour, partnership and ‘coming out’. It discusses direct and indirect discrimination, harassment, permissible and impermissible exceptions, sanctions, and the role of interest groups and specialised enforcement bodies. This is done against the background of international human rights law and in relation to the general legal situation with respect to lesbian and gay rights in the twenty-seven countries. The book can be ordered at www.springer.com/law/international/book/978-90-6704-213-0. In part this book is based on the 2004 report "Combating sexual orientation and discrimination in employment: legislation in fifteen EU member states" that was commissioned by the European Commission and edited by the book's authors. That report (including 15 country reports) is online at http://hdl.handle.net/1887/12587, and in French at http://hdl.handle.net/1887/12566.
This introduction provides a brief overview of key political developments in global lesbian, gay, bisexual and transgender (LGBT) organizing and advocacy over the past three decades as well as a summary of recent academic research and debates on these issues in politics, sociology and other disciplines. It introduces the three questions addressed by the volume's subsequent contributions: (1) How can recent global developments related to LGBT human rights advocacy and organizing be explained by political and sociological theories? (2) What is at stake in focusing on 'human rights' rather than concepts such as 'equality', 'justice', 'liberation', 'self-determination' and/or 'queer politics'? (3) How do transnational human rights networks and global norms of LGBT rights affect domestic politics in both the global North and global South? The article pays particular attention to the 'human rights turn' of the LGBT movements in the early 1990s and the political successes and failures that have ensued. Finally, it summarizes the main findings of the volume's contributions and how they relate to the questions raised in this introduction.
This article explores the meaning and relevance of the ‘Idea of Europe’ in the context of a multicultural and multi-ethnic continent that increasingly draws on the presence and practices of people from non-European backgrounds. The Idea of Europe, even in its contemporary use, remains an ideal based on a Christian-Enlightenment-Romantic heritage, mobilized by supporters of European integration as the bridge between diverse European national cultures. In a Europe of extraordinary cultural interchange and immigration from all corners of the world, the classical Idea of Europe is strikingly exclusionary and backward looking – a poor motif for the future. The article tries to develop an alternative Idea of Europe, one based on a particular politics of the public domain and a particular ethos of belonging in Europe seen as a migrant space, rather than one based on the enduring cultural values of a body of people called Europeans. It outlines a commons, protected by appropriate EU-level rights, that can both support and bind cultural pluralism and difference, and it proposes democratic vitalism as Europe’s core political project, an idea of becoming European, read as the process of never-settled cultural invention resulting from the vibrant clashes of an equal and empowered multiple public. No myth of origin, no myth of destination, only the commitment to a plural demos.
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