Gay Rights and European Citizenship

Joydeep Sengupta. The Gay & Lesbian Review Worldwide. Volume 9, Issue 6. Nov/Dec 2002.

The European Union (EU) has been cautiously approaching the notion of the “European citizen” as a person endowed with certain rights, privileges, and responsibilities traditionally held as the exclusive jurisdiction of nation states. Including gay rights within this evolving notion of EU citizenship requires a negotiation of tights in transnational space while utilizing the slowly widening apertures at the national level.

Citizenship is the legal expression of membership in the national family, carrying with it the obligation for its defense and welfare. Exclusions from the rights and duties of citizenship—such as banning homosexuals from the military or denying them the right to marry and create a family—are a symbolic ostracism from the national family. Attempts to redress the systematic exclusion of gays from full citizenship in Europe must reconcile a reprehensible history of injustice rooted in prohibitions on homosexuality in the Judeo-Christian religious traditions, and (with a few exceptions) in the criminalization, pathologization, or mere omission of homosexuality in legal code until the 20th century.

The progressive expansion of gay rights corresponds to the growing understanding of gays and lesbians as a “social group” having claims to rights similar to those of other minorities—ethnic, religious, and linguistic ones, among others—traditionally the target of discrimination. Many demands for greater rights and protections for gays and lesbians are similar to those sought by women or other minority groups, such as nondiscrimination in laws governing employment, housing, or access to public office and government services. On the other hand, most other minorities in Europe have not had to worry about laws governing marriage, property, inheritance, taxation, divorce, joint adoptions, custody rights, insurance and employer benefits, and immigration, as these rights have traditionally been derived automatically from heterosexual marriage.

The law plays a critical role in constructing group identity, affecting how the group is perceived by society at large. While minority legislation broadly addresses the group, the particular application of it to the individual forms the basis for contesting rights and benefits. Especially in the Anglo-American common law tradition, and to a large extent within continental civil law systems, the individual is afforded primary legal personhood; the individual, not the group, is the subject of the law. As Nathan Glazer has observed, the Fifth Amendment to the U.S. Constitution, which provided the legal foundation for the minority rights protections of the subsequent Fourteenth Amendment, emphasizes the “person” and the “citizen” in its guarantees for due process, privileges and immunities, and equal protection of the law.

In the U.S., right-wing opposition to civil tights advancements is sometimes veiled as a principled rejection of “special” tights for minority groups and women, since they explicitly recognize certain groups and provide protections that supposedly are not applicable to, say, white heterosexual males. In Inclusion of the Other: Studies in Political Theory. (1998), Jurgen Habermas observes that the “legislation of identity,” especially minority identities, in Western liberal democracies stands on precarious ground. Group rights are critiqued as weakening an individual rights culture, which has strengthened civil rights claims. Additionally, claims for state protection of a group’s identity as distinct from the majority’s religious and cultural value system are viewed as threats to national unity. Claims for rights by one group occasionally necessitates the controversial and divisive subjugation of the claims of another, such as religious conservatives and gay tights advocates. Habermas observes that “protection of collective identities comes into competition with the tight to equal individual liberties (subjective Freiheiten)—Kant’s one original human right—so that in a case of conflict a decision must be made about which takes precedence.”

In an article in Journal of Politics (May 1996), Haider-Markel and Meier propose an explanation for the evolution of gay and lesbian collective rights in the American context. They claim that “two competing coalitions [are] often formed around conflicting ideological camps and/or partisanship, and are brought to a public vote.” The process resembles that of redistributive politics, except that groups seek to redistribute values rather than money through government action. The “government stamp of approval” is viewed as validation of their interests and affirmation of its rights as citizens. In Multiculturalism and “The Politics of Recognition” (1992), Amy Gutmann asserts that minority groups within pluralistic democracies seek “public recognition as equal citizens,” thereby requiting two forms of legal respect from the majority: respect for unique identities, and respect for activities, practices, and world views. Thus, for group-identified sexual minority cultures, legislative protection serves not only to guarantee fundamental rights against prejudice or discrimination from the majority culture, but also to assert the right to enter into alternative social units and pursue autonomous cultural expression regardless of majority opinion against it.

In modern liberal democracies, group tights are broadly derived from the authority vested in elected leaders, who must then promote social justice while upholding the primacy of individual equality. This is complemented by a progressive, positivist legal culture in which the rights of minorities are upheld to prevent discrimination by the majority. Indeed, group rights have a long historical lineage in the West: Roman and Justinian law, for instance, provided special protections for politically weaker groups, such as women and slaves. In the utilitarian tradition of Jeremy Bentham and John Stuart Mill, protection of individual rights (entitlements) and liberties within the democratic state is favored over paternalistic prohibitions on behavior deemed harmful to the group. Mill’s famous “harm principle” strongly resonates with the modern legal concept of “proportionality”: Mill asserts that the potential tyranny of an all-powerful state must be restrained by forbidding state intervention in private choices that do not directly harm the general welfare of others.

The harm principle is what deprives the government of the right to interfere in the practice of private same-sex behavior between consenting adults, an act that does not inflict a proportional harm upon other citizens. In the gay marriage cases in Hawaii and Vermont, moral opposition or a paternalistic commitment to preserving “traditional values” is insufficient reasons for restricting rights. But the sweeping passage of anti-gay-marriage legislation in many states and at the federal level reveals that a moralistic ethic still wins the day with the argument that gay marriage would so harm the majority of citizens as to abolish the minority’s claim to equal rights. Even John Stuart Mill, who advocated the full enfranchisement of one excluded group, women, simultaneously supported English efforts against colonized peoples, and he approved the imposition of “civilization” on traditional societies as a necessary evil.

In History of Sexuality, Foucault argues that in the 18th and 19th centuries, European society increasingly embraced a monolithic norm of heterosexual monogamy. This bourgeois norm translated into laws that restricted sexual behavior and forced the diverse sexual identities of Europe into the closet. As Foucault amply demonstrates, these identities were painstakingly enumerated in the law, which regulated extramarital sex, premarital sex, incest, sodomy in all its forms, miscegenation, prostitution, and so on. Thus did a category of “moral degenerates” join a number of other social categories—women, the landless, Jews, Gypsies, and so on—as legally excluded from the full benefits and privileges of citizenship. The persecution of what Foucault called “peripheral sexualities” thus shares a common heritage with the persecution of these other minorities.

Despite the continued occurrence of systemic homophobia and legally enforced inequality for gay and lesbian people in parts of Western Europe, the continent leads the world in gay rights advances. Legal equality began to emerge slowly with the growing acceptance of homosexuals in postwar Europe. All EU countries have decriminalized same-sex behavior, and most have repealed higher age-of-consent laws for homosexual acts. In the last two decades, dramatic advances have occurred in the areas of employment non-discrimination, access to reproductive technologies, partner recognition for taxation, immigration, and co-adoption, and protection from hate speech and hate-motivated violence. As in the U.S., support for equal rights varies regionally, being strongest in the north and the west, weakest in the south and east. Political support for gay rights in most EU countries rests on coalitions built by left-leaning parties, which have brought gay rights under their traditional banner of minority rights.

Scandinavian countries and the Netherlands continue to provide the most comprehensive legal protections to gays and lesbians. By 1989, Denmark had enforced employment non-discrimination, removed barriers to full military service, and led the world in the revolutionary Danish Registered Partnership Act or DRP. The DRP became the world’s first national-level legislation recognizing the rights of homosexual couples almost on a par with heterosexuals (except in access to reproductive technologies from public health officials, church weddings, and joint adoptions). Currently all five Nordic countries offer some form of domestic partnership and adoption provision. In 2000, the Netherlands became the only government in the world to extended full marriage benefits, including adoption rights, to same-sex couples. Between 1999 and 2001, both France and Germany instituted partnership acts that permit the official registration of same-sex couples and many benefits of marriage. Within the EU, Belgium, Denmark, Finland, France, Germany, Holland, Sweden, and the UK all offer immigration rights for binational couples.

Still, the principle of equality for gay people does not have the status of an indisputable universal human right in the manner of, say, freedom from involuntary servitude. Two key international courts, the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR), have enforced EU treaties and international human rights treaties with varying success when they’ve come into conflict with national laws. Created to interpret and uphold EU treaties, the ECJ has taken a conservative approach in adjudicating discrimination claims stemming from treaty provisions on gender equality. In ruling against granting equal employer benefits for homosexual couples otherwise available to heterosexuals, the ECJ has repeatedly recommended more explicit EU legislation on gay partnerships. While not an EU Court, the ECHR upholds the European Convention of Human Rights and Fundamental Freedoms (ECHRFF), to which the EU is formally committed through the Maastricht Treaty. For example, archaic sodomy laws in Northern Ireland were famously struck down in the Dudgeon v. United Kingdom case at the ECHR, and ruled a violation of the right to privacy. Catholic opposition to gay rights had preserved largely unenforced sodomy laws in the Republic of Ireland. In Norris v. Ireland, the ECHR ruled that Ireland should repeal its sodomy laws, and invalidated the Irish High Court’s claim that the “Christian and democratic nature” of Ireland was sufficient justification for upholding the laws. The Irish Parliament complied in 1993, striking down all legal discrimination by instituting gender-neutral language.

But standard gay rights legislation for the whole EU remains sparse, causing wide regional disparities in the law. Unlike heterosexual marriage, for instance, same-sex marriage and domestic partnerships do not enjoy uniform reciprocal recognition among all EU states. As the European Court of Justice has repeatedly urged, more explicit EU legislation by way of directives on gay rights issues is necessary, since significant exclusions from the benefits of EU citizenship cannot be adequately addressed by national legislatures. The Treaty of Amsterdam of 1997 introduced for the first time a provision (Article 13) that authorizes the Community to “take appropriate action to combat discrimination [based on sexual orientation].” This article made possible a Council directive in 2000, the first explicit piece of EU legislation prohibiting discrimination on the basis of sexual orientation in private and public employment. While major gains have been made on nondiscrimination in employment, privacy rights, and sodomy laws, areas that are only now being addressed include same-sex marriage, reproductive choice, and immigration rights for gay partners.

With the fragmented, contested, and occasionally triumphant process of integrating a diverse continent, European leaders have long envisioned common values and principles upon which a shared democratic identity of contemporary Europe may be constructed. Embracing the human rights cause has been one such manifestation, and EU governments have consistently supported promotion of human rights worldwide, protection of existing mechanisms for human rights protection, strengthening of human rights organizations, and creation of new institutions for enforcement of international human rights law. In 2000, the European Council adopted the ambitious Charter of Fundamental Rights of the European Union, which provides a sweeping nondiscrimination provision: “[A]ny discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or other opinion, membership in a national minority, property, birth, disability, age or sexual orientation shall be prohibited.”

Despite a lack of binding force, the Charter provides additional authority to EU institutions when interpreting community principles and adjudicating discrimination claims. Efforts to create a transnational European identity deeply rooted in respect for human rights requires stronger leadership of member states and continued commitment towards democratic values and minority protections. EU leadership has led to the repeal of anti-gay laws in several non-EU countries, as a condition of future membership. By strengthening support for human rights enforcement and providing moral leadership in promoting equal rights for sexual minorities, the EU can simultaneously consolidate its position as a modernizing, pluralizing, diversifying, progressive force, committed to just and humane social values. The answers that emerge on the citizenship debate must reach to the very soul of the European Union project, and what it seeks to become.