MOANA GENEVEY

Whereas same-sex sexual activity was only decriminalised in 1993 in the Republic of Ireland, in 2015 the country officially legalised gay marriage, through a popular referendum, with a total ratio of 62% of ‘Yes’ votes. Gavin Boyd, a gay rights activist, declared to Irish citizens “you have chosen, as a nation, to extend marriage rights to your Lesbian Gay Bi and Transgender (LGBT) family, friends and neighbours and this will go down in history as another example of the decency and fairness of the Irish people” (McDonald, 2015). Peter Tatchell, a human rights activist, stated that “the Irish people have voted for love and equality” (Idem). As a matter of fact, during the campaign, LGBT and human rights activists worked hand in hand to open marriage laws to same-sex couples in Ireland.  Access to marriage was envisaged as granting a basic fundamental right to the LGBT community as well as building a fairer, more equal society. This example can illustrate that human rights discourses are becoming central tools for protecting and defending LGBT rights in Europe. However, some gay rights activists oppose these methods and their results, most of them arguing that the ‘equality’ achieved this way is illusory and reflects the dominance of heterosexual norms in European societies.

Focused on the issue of same-sex marriage, this article will question whether the use of human rights law in the past 30 years for the protection of LGBT rights is a successful strategy for completing real and meaningful equality. It will be first done by analysing the three ‘waves’ of LGBT rights protection in Europe and their inherent ties with European human rights case law. Then, reflecting on the dichotomy between substantive and formal equality, it will be discussed that same-sex marriage may not be a proper instrument for attaining substantive equality, but that the formal equality it grants to same-sex couples remains meaningful, in the sense of bearing major benefits.

Human rights law and the three waves of LGBT rights protection

If emancipatory movements for sexual reforms emerged already in the 19th century, it is the use of “human rights as a central vehicle and framing device for LGBT political claims” (Kollman and Waites, 2009: 2–3) which accelerated and enforced a deeper recognition of their situation. Framing the debate in terms of fundamental rights to privacy and family life in the name of an equal treatment for the LGBT community led to significant legal changes since the 1980’s. According to Waaldijk (2000), the protection of LGBT rights in Europe was progressively achieved in three ‘waves’: first, the decriminalisation of homosexuality, then the progressive implementation of anti-discrimination legislation, and finally, the recognition of same-sex families through access to civil ‘partnerships’ and then marriage

While in Europe the ending of bans on ‘homosexual activities’ started in the 1950’s, in many countries the legal landscape in that matter remained rather heterogeneous for decades. As “many of the victories for LGBT equality have been achieved through judicial decisions” (Bribosia et al., 2014: 3–4), it is the cardinal 1981 European Court of Human Rights (ECtHR) case of Dudgeon v. UK  which granted a European dimension to the decriminalisation of homosexuality. The Court ruled that classifying homosexual relations between males as a criminal offence was a violation of Article 8 of the European Convention on Human Rights (ECHR), as it infringed the right to respect for private life.  Homosexuality was decriminalised in Northern Ireland on the following year, and this legal move showed that “homosexual law reform had become an international human rights issue” (Waaldijk, 2000: 72). This legal shift resulted in a second wave of LGBT rights protection, through the national adoptions of anti-discrimination laws.

The LGBT community became increasingly protected from various forms of discrimination (Waaldijk, 2004: 112). Consequently, a third wave of recognition occurred through the legal acknowledgement of same-sex partnerships and families. Once again, the ECtHR litigation paved the way to a broader understanding of the notion of ‘family life’. Concurrently to the judicial recognition that a stable unmarried same-sex couple could be granted some similar legal advantages to a heterosexual one, through the 2013 X and Others v. Austria case,  several European countries started to create – or to open – civil partnerships to homosexual couples. However, many human rights activists are condemning this legal trend as being discriminatory. Professor Wintemute argues that this practice amounts to a ‘legal segregation’ similar to the apartheid system in South Africa (Bribosia et al., 2014: 6). Consequently, the latest struggle for several LGBT rights defenders is to open the institution of marriage to homosexual couples. Access to marriage is thus apprehended as a human right to family life, but also as an egalitarian objective. In 2010,  with the  Schalk and Kopf v. Austria case, the ECtHR has finally recognised that “the right to marry is not necessarily limited to marriage between persons of the opposite sex” (Bribosia et al., 2014: 4) – without obliging contracting states to open marriage to same-sex couples. Today, thirteen states of the E.U. recognise same-sex marriage (Lipka, 2015)

Human rights law and the perpetuation of heteronormativity

Going from being criminalised for their sexual orientation to progressively accessing the traditional institution of marriage, the LGBT community utilized and benefited from human rig
hts law in order to attain equality. However, it is worth questioning the value of equality achieved through human rights instruments, with particular reference to the ECtHR case law. There is a theoretical debate surrounding the concept of equality, which often opposes the notion of ‘formal equality’ to the one of ‘substantive equality’. The first term “prescribes equal treatment of all people regardless of circumstances, on the understanding that all have the same rights and entitlements” (Australian Equal Opportunity Commission, 2014). In that sense, formal equality provides an equal treatment of all – including same-sex couples – before the law.  The second term “recognises that rights, entitlements, opportunities and access are not equally distributed throughout society” (Idem). Taking into account dynamics of social privileges and powers, substantive equality is envisaged as “respectfully tailoring treatment to a group’s relevant features while recognising its moral worth” (Leckey, 2014: 5). Therefore, as same-sex couples accessing marriage is an embodiment of formal equality, many scholars believe that it does not achieve substantive equality.

According to Butler, as our societies are organised around implicit norms (Butler, 2004: 41), the chief normalizing principle which should be deconstructed and overcome is the one of ‘heteronormativity’. This concept suggests that, through multiple channels, “heterosexuality is normalized, naturalized and privileged as an institution” while “homosexual practices and relationships are excluded, stigmatized, marginalised and minoritized” (Roseneil et al., 2013: 166). While heteronormativity is an implicit form of domination, highlighting that heterosexuality is in fact an oppressive social construct is made deeply problematic, since it is collectively taken for granted as an ordinary feature of society. More specifically, “law is central to the creation, maintenance and reproduction of heteronormativity within contemporary societies” (Johnson, 2011: 350). In this view, laws on access to marriage for same-sex couples are a form of perpetuation of the heterosexual dominant norm, since marriage has been envisaged for centuries as the normal legal means to acknowledge and protect opposite-sex relationships.

Envisaging marriage as a chief development of heteronormativity leads to recognise that this traditional form of union relies on “models of heterosexual behaviours […] that may not adequately reflect the lived experiences” (Burns et al. 2008: 482) of same-sex couples. As many marriage laws are often gendered and built around a traditional and unequal vision of the division of domestic work, Leckey explains that “much research on same-sex domesticity points to a strong egalitarian ideal for division of labour” (Leckey, 2014: 11).
These findings underline that, even if same-sex marriage grants the LGBT community with equal treatment regarding laws on marriage, these same laws cannot achieve real, substantive equality.  They are indeed often tailored according to social conducts which have been traditionally ascribed to heterosexual couples and which are not necessarily in line with homosexual visions of couples and partnerships. Besides, as acceding to marriage can be interpreted as an incentive to conform to dominant heterosexual norms, some scholars have also stressed that it has a potential to further marginalise same-sex couples who refuse to get married (Spade, 2011: 126). Thus, not only same-sex marriage can appear as an improper tool to achieve substantive equality for the LGBT community, it can also be envisaged as a marginalising one.

The pragmatic benefits of human rights law

If access to marriage for same-sex couples has been a human rights struggle for many LGBT activists, reached through parliamentary law or litigation, this instrument has been questioned for being a symbol of heteronormativity, unable to provide substantive equality and being potentially exclusionary.  However, whilst same-sex marriage does not grant real equality for the LGBT community, this does not mean that the equal treatment it provides is not meaningful in the sense of bearing crucial benefits.

In his comparative analysis of liberalism and queer theory, Ball explains that philosophical disagreement between liberalism and queer theory should not lead to a rejection of human rights claims by the LGBT community, as they can have a pragmatic utility (Ball, 2001). According to the author, there is a “practical necessity of relying on humanist arguments”, especially in the constitutional field, as “gay men and lesbians have won constitutional cases when judges have viewed them as full human beings” (Ibid.: 286). This pragmatic argument can be extended beyond the context of constitutional battles. In the case of same-sex marriage, whether or not it is a reflection of heteronormativity, two types of benefits can be drawn from this equal treatment of homosexuals before the law: an instrumental one and a political one.

The main instrumental benefit of access to marriage for same-sex couples is that, in many European countries, it is the only legal way for these couples to become parents. For instance, in Austria, while gay marriage has still not been enacted, the Austria Registered Partnership Act states that “registered partners, unlike married couples, cannot adopt a child, cannot adopt a step-child, and have no access to state-regulated artificial insemination” (Johnson, 2011: p 360). The right to marry can thus lead same-sex partners to a fuller enjoyment of their right to family life through access to parenthood, but can also provide legal protection to unmarried same-sex parents and their children.

Moreover, access to marriage for same-sex couples can also be a political tool to fight intolerance. Indeed, quoting a constitutional Canadian case, Leckey explains that “the government’s failure to open marriage to same-sex couples telegraphed the message that same-sex couples were incapable ‘of forming loving lasting relationships’ and that same-sex relationships were ‘not worthy of the same respect and recognition as opposite-sex relationships’” (Leckey, 2014: 13–14). In this context, accessing marriage within the LGBT community can become a political statement, directed against the common societal belief that “same-sex couples are unstable or less committed than married different-sex couples” (Ibid.: 13). In fact, the main reasons identified by some authors for same-sex couples to get married are “greater acknowledgement of the couple by families and professional peers, sense of social equality and legitimacy, and reduction of internal, familial, and societal homophobia” (Schecter et al., 2008: 417). If getting married for these reasons does involve a sense of conformity to the norm, it also implies that access to marriage has a symbolic and political value, conveying the message that homosexual couples have an equal moral worth to heterosexual ones. In general, the formal equality granted by same-sex marriage should not be disregarded, as it has the pragmatic utility to both facilitate parenthood to same-sex couples, but also to serve as a symbol for tolerance and social acceptance.

Conclusion

Human rights law has been an effective resource to move from a complete ban on homosexual activities in Europe to the recognition and protection of same-sex families, notably through the legalisation of same-sex marriage. However, these achievements are being criticised by many LGBT scholars and activists, as reproducing the social construct of heteronormativity and thus failing to attain substantial equality for the LGBT community. If the major instrumental and political benefits of same-sex marriage must be acknowledged, human rights laws must not be apprehended as the final and only way to protect and empower the LGBT community. The 2014 LGBT survey of the Fundamental Rights Agency (FRA) of the European Union suggests that, on average in Europe, 66% of gays and lesbians avoid holding hands in public for fear of being assaulted, threatened or harassed (FRA, 2014: 87). This concerning trend suggests that a deeper change in mentality is needed in Europe regarding the LGBT community, a change that any human rights legislation or litigation seem unlikely to correct on their own.

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MEET THE AUTHOR

Moana Genevey graduated in political science and European studies, before undertaking the E.MA program in 2014. She developed a strong commitment for equal treatment by working with various organisations involved in the fight against discrimination, such as the European Network Against Racism, the Northern Ireland Council for Ethnic Minorities and Equinet. Journalist in a student newspaper for 5 years, she has also been a dedicated activist for different
campaigns, raising funds after the Nepalese earthquakes or raising awareness on youth unemployment.