Most philosophers agree that it is unjust for one’s life prospects to be determined by one’s race, gender, or social class. And most think that there are demanding duties on members of the same political community (co-citizens) to reduce inequalities that track these features of individuals. But philosophers strongly disagree about how to evaluate inequalities that track the country one is born in. Are global inequalities (inequalities among individuals living in different countries) as problematic and for the same reasons as domestic inequalities (inequalities among co-citizens)? The question of whether egalitarian principles of distributive justice extend globally, beyond the domestic sphere, has been the central question in the debate on global distributive justice. Statists argue that there is something normatively significant about the state, but not the global institutional order, which grounds one’s concerns with domestic inequalities, but not global inequalities. Global egalitarians argue that global inequalities are as unjust to the same extent and for the same reasons as domestic inequalities. The disagreement between both camps can be traced back to different normative, empirical, and methodological assumptions. Statists and global egalitarians can, however, converge on a number of important issues, and the debate can be advanced beyond the stalemate it has reached by investigating these issues of convergence. Significantly, statists can agree with global egalitarians that global justice requires equality of concern (the requirement that interests of all individuals have equal weight), and global egalitarians have reasons to take states seriously to the extent that having a world of states (or multiple political communities) can be shown to be compatible with the requirement of equal concern. Thus, it is important to work out whether individuals have a fundamental interest in being members of political communities, how that interest compares to their interests in opportunities, income, and wealth, and which institutional arraignments can advance these interests according to the right balance.
Article
Spanning the Renaissance and the Enlightenment—the 15th/16th to the 18th centuries—the early modern period in Europe sees a fundamental evolution in relation to the conception and expression of same-sex desire. The gradual emergence of a marginalized homosexual identity, both individual and collective, accompanies a profound transformation in the understanding of the sexed body: the consolidation of two separate and “opposite” sexes, which sustain physiologically grounded sexual and gender roles. This new paradigm contrasts with an earlier one in which masculinity and femininity might be seen as representing points on a spectrum, and same-sex desire, perceived as potentially concerning all men and women, was not assimilable to a permanent characteristic excluding desire for and relations with members of the other sex. These developments, however, happened gradually and unevenly. The period is therefore characterized by differing models of homosexual desire and practices—majoritizing and minoritizing—that coexist in multiple and shifting configurations. The challenge for historians is to describe these in their full complexity, taking account of geographic variations and of both differences and continuities over time—between the beginning of the period and its end, between different points within it, and between early modernity and the present or the more recent past. The tension between similarity, identity, and the endurance of categories, on the one hand, and alterity, incommensurability, and rupture, on the other hand, defies dichotomous thinking that would see them as opposites, and favor one to the exclusion of the other. In making such comparative studies, we would no doubt do well to think not in singular but in plural terms, that is, of homosexualities in history.
Article
Nayani Rajapaksha and Chrishantha Abeysena
Human immunodeficiency virus (HIV) is a major global public health issue. In 2019, an estimated 38 million people worldwide were living with HIV. Of these, 2–3 million HIV cases were estimated to be in the South Asia region. In South Asia, India has the largest population (1.366 billion), whereas the Maldives has the smallest (0.54 million) population.
In line with global strategies, most of the countries adapt strategies to end HIV in 2030. The rights-based approach is a guiding principle of HIV policy in most countries. Integrated HIV testing and counseling services are implemented through facility-based and community-based services. The percentage of people who are on Anti-Retroviral Treatment among the diagnosed, is highest (81%) in Nepal. The Maldives and Sri Lanka achieved elimination of mother-to-child transmission of HIV in 2019.
Coverage for preventive programs is low in all the countries. Condom usage is low in all the key population groups in the region except India, Nepal, and Sri Lanka. Sex education is integrated into the school curriculum in Nepal and Sri Lanka. Knowledge of HIV prevention among the young population is low in all the countries. India, Nepal, and Pakistan provide both needle and syringe programs and opioid substitution therapy. A high percentage of people who are injecting drug users (IDUs) have safe injecting practices in all the countries.
The prevalence of HIV is low in all the countries, but concentrated epidemics continue in some countries. A higher prevalence of HIV is reported among IDUs in all the countries except Bhutan. The prevalence of HIV is also higher among transgender people in Nepal and Pakistan. Since 2010, a declining trend in new HIV infections has been observed in Bhutan, India, Nepal, and Sri Lanka, and an increasing trend has been observed in Afghanistan, Bangladesh, and Pakistan.
Some South Asian countries have many punitive laws, while others have introduced legal protection for key populations. Sex work is criminalized in all the countries. In Bhutan, when men who have sex with men and IDUs seek health services, the health worker is obliged to report them to the police. Nepal became the first South Asian country to identify the existence of “sexual and gender minorities” in its constitution. There is a protective legal environment for homosexuality in Nepal. India also has several laws protecting homosexuals, transgender people, and IDUs, and laws against sexual harassment in the workplace. India has become the first South Asian country to implement special protective laws on HIV/AIDS. India has criminalized discrimination against people living with HIV/AIDS.
The presence of stigma and discrimination is a major critical factor for the national approach to HIV prevention in all South Asian countries. Stigma and discrimination are observed in healthcare facilities, within families, in employment, and in educational institutions, and many countries have developed antidiscrimination policies in response.
Throughout the region, poverty, low literacy, outbound migration, tourism, internal displacement, disasters, poor infrastructure of healthcare systems, population size, and social and cultural values have hampered the response to HIV.
Article
Scott Skinner-Thompson
The fight to effectively treat and stop the spread of the human immunodeficiency virus (HIV) has made meaningful progress both in the United States and globally. But within the United States that progress has been uneven across various demographic groups and geographic areas, and has plateaued. While scientific advances have led to the development of medicine capable of both treating and preventing HIV, law and policy dictate who will have ready access to these medicines and other prevention techniques, and who will not. Law and policy also play a crucial role in determining whether HIV will be stigmatized, discouraging people from being tested and treated, or will be identified for what it is—a preventable and treatable disease. To make further progress against HIV, the United States must address healthcare disparities, end the criminalization of HIV, and devote additional resources toward combatting HIV stigma and discrimination.
Article
Chien-Chih Lin
Courts around the world have become more and more influential, and Asian courts are no exception. The effects of Asian constitutional courts span all political, social, and economic areas and fall into five main categories: (1) consolidating democracies, (2) exacerbating political chaos, (3) perpetuating authoritarianism, (4) facilitating economic development, and (5) spurring social change. Politically, constitutional courts in many Asian countries have helped consolidate fledgling democracies by entrenching constitutional principles, by facilitating the disbandment of unconstitutional parties, by promoting a level political playing field, by permitting the impeachment of authoritarian heads of state, and by minimizing religious clashes. Judicial intervention, however, may spawn unwanted results when it fails to hammer out a solution that facilitates constitutional functioning. Worse still, judicial intervention may perpetuate authoritarian reign. Economically, an efficient and independent judiciary usually signals a government’s commitment to property protection, which is a foundation of economic development, including foreign investment. This principle, interestingly enough, applies to autocracies as well as to democracies. Socially, judicial decisions may either spearhead social change or plant the seeds of future progress. Indeed, decisions unfavorable to petitioners can trigger, in ordinary people, a profound awareness of rights, resulting in even more litigation. Notably, these five types of effects are not necessarily mutually exclusive and are, in some scenarios, complementary. For example, a capable court may simultaneously facilitate economic development and undergird dictatorships. Furthermore, these effects are a function of three interdependent factors: the scope of judicial powers, the degree of judicial activism, and the response of audiences. Other things being equal, the more powerful and active a court is, the more likely its decisions will be able to generate repercussions, thereby strengthening the judiciary. To be sure, other things are not always equal in reality, and these factors are endogenous to a considerable extent. Moreover, the effects of constitutional courts do not remain constant, as political environments in which they are embedded are volatile. Therefore, the relationships between the five judicial effects and the three interdependent factors are rather dynamic. Although constitutional courts in Asia have become much more influential in general since the 1990s, the growth in their judicial effects has not necessarily been a blessing. Sometimes when the decisions of Asian courts have crossed lines that politicians deem inviolable, the courts have encountered various degrees of political revenge. To navigate the storms of political retaliation provoked by controversial judicial decisions, many constitutional courts—particularly those in democratizing Asian states—must steer a middle path between obedience and recalcitrance.
Article
The International Criminal Court (ICC) has generated considerable controversy since it came into force in 2002, principally because of its overriding focus on African conflict situations and suspects. This has led to accusations that the ICC is a neocolonial meddler in African affairs, wielding undue and unaccountable influence over the domestic political arena. Drawing on the author’s field research in Uganda and the Democratic Republic of Congo since 2006 this article contends that the neocolonialism critique of the ICC exaggerates the power of the Court while underestimating the capacity of African states to use the ICC to their own ends. Delivering distanced justice from The Hague with limited expertise on African societies and spending scant time in the field, the ICC has failed to grapple sufficiently with complex political dynamics “on the ground.” Combined with the Court’s heavy reliance on state cooperation, these factors have enabled African governments to use the ICC to target their political and military enemies while protecting themselves from prosecution. This has also emboldened African states in continuing to commit atrocity crimes against civilians, especially during periods of mass conflict and fraught national elections. While claiming to hover above the political fray, the ICC has become heavily politicized and instrumentalized by African states, with lasting and damaging consequences for the practice of national politics across Africa. To avoid being willfully used by African governments, the ICC must bolster its political expertise and become politically savvier. Rather than claiming to be neutral while hovering above the domestic terrain, the ICC must embrace its inherently political nature and deliver justice in a way that improves rather than undermines the practice of national and community-level politics across Africa.
Article
Sharon Pardo
Israeli-European Union (EU) relations have consisted of a number of conflicting trends that have resulted in the emergence of a highly problematic and volatile relationship: one characterized by a strong and ever-increasing network of economic, cultural, and personal ties, yet marked, at the political level, by disappointment, bitterness, and anger. On the one hand, Israel has displayed a genuine desire to strengthen its ties with the EU and to be included as part of the European integration project. On the other hand, Israelis are deeply suspicious of the Union’s policies and are untrusting of the Union’s intentions toward the Israeli-Palestinian conflict and to the Middle East as a whole. As a result, Israel has been determined to minimize the EU’s role in the Middle East peace process (MEPP), and to deny it any direct involvement in the negotiations with the Palestinians. The article summarizes some key developments in Israeli-European Community (EC)/EU relations since 1957: the Israeli (re)turn to Europe in the late 1950s; EC–Israeli economic and trade relations; the 1980 Venice Declaration and the EC/EU involvement in the MEPP; EU–Israeli relations in a regional/Mediterranean context; the question of Israeli settlements’ products entering free of duty to the European Common Market; EU–Israeli relations in the age of the European Neighbourhood Policy (ENP); the failed attempt to upgrade EU–Israeli relations between the years 2007 and 2014; and the Union’s prohibition on EU funding to Israeli entities beyond the 1967 borders. By discussing the history of this uneasy relationship, the article further offers insights into how the EU is actually judged as a global-normative actor by Israelis.
Article
Calliope Spanou
Judicial control over the bureaucracy is a means to defend the rule of law and important principles of democratic governance. It refers to the power of the courts to consider whether the actions of public authorities respect the limits prescribed by law. Regimes of judicial control vary in legal and administrative systems. Two major traditions can be mainly distinguished. The first characterizes continental Europe. It assigns judicial review to specialized administrative courts and involves a special branch of law, that is, administrative law. The second relies on ordinary courts and characterizes the Anglo-American system of common law. The two traditions also differ regarding the role of the courts and particularly their possibility to shape rules (common law tradition) or to apply rules (continental tradition).
The expansion of state activities, including economic and social regulation and welfare service provision, has blurred the old politics–administration distinction since more and more decisions are delegated by parliaments to the administration, endowing it with wide discretionary powers. These developments have added a new meaning to the implementation of the rule of law. When the content of decisions is bound by a legal rule, legal compliance is more straightforward than when there is a margin of appreciation and choice. Circumscribing administrative discretion passes first and foremost from regulating the process of decision-making. Procedural standards have indeed been an area of primary concern for courts. Increasingly, nevertheless, substantive aspects of the administrative decision-making process and even service provision come under judicial scrutiny. Its extent inevitably differs from one legal system to another.
The intensity of judicial review and its impact on (a) administrative operation and (b) policy decisions raise critical questions: how is it possible to achieve a balance between managerial flexibility, efficiency, and responsibility on the one hand and legal accountability on the other? To what extent may the courts substitute their own judgment for that of policymakers and the administrative or expert opinion underlying the decision under examination? How far do they go in scrutinizing policymaking and implementation?
Judicial control involves constraining as well as constructive effects on the administration. It may contribute to an institution-building process (e.g., strengthening of Weberian-type features, increasing formalization, etc.) and to the agenda-building process, and it may influence policymaking. In certain contexts, courts even tend to become political actors. The reverse side is that they may step into matters of management and policymaking for which they are not prepared or institutionally responsible. This points to potential tensions between the administration (the executive) and the judiciary but also underlines the limitations of judicial control. Delicate issues regarding the separation of powers may emerge. Furthermore, cost, delays, the degree of administrative compliance with judicial decisions, and the ability of courts to integrate into their reasoning issues of efficiency and effectiveness constitute growing challenges to judicial control.
Article
Nuno Garoupa and Catarina Santos Botelho
In collegial courts, disagreements are inevitable. Are these disagreements advantageous or disadvantageous for lawmaking? Why, when, and how do judges decide to disagree with each other? The literature about collegial courts includes extensive normative and positive theories about separate opinions as well as how these kinds of decisions are made. Scholars offer different explanations based on distinct frameworks: a cost–benefit analysis (within rational-choice theory), the principal–agent model, and via legal culture. By considering the complexity of separate opinions in style, substance, collegiality, and frequency, it is possible to find compromises between both (normative and positive) strains of the literature. These compromises reflect a fundamental divergence between private (individual) and social motivations to promote separate opinions.
Article
John P. Kastellec
Crucial to understanding the behavior of judges and the outputs of courts is the institutional context in which they operate. One key component of courts’ institutional structure is that the judiciary is organized as a hierarchy, which creates both problems and opportunities for judges. For instance, one problem for judges at the top of a hierarchy is how to best exercise oversight of lower court judges, whose decisions are often not reviewed by higher courts. One opportunity is that higher courts can reverse errors by lower courts; another is that, as new legal issues emerge, hierarchy provides opportunities for judges to learn from one another.
Scholars of the judicial hierarchy have pursued two broad approaches. The “team perspective” begins by assuming that all judges in a hierarchy have the same values or principles, and thus care only about achieving the correct outcome in a given case. In the team approach, the key problem in adjudication is informational. All judges agree on the correct outcome of a case, conditional on understanding the relevant facts, but may lack this understanding due to resource constraints or informational advantages enjoyed by litigants. The agency approach, by contrast assumes that judges in the hierarchy have differing preferences, and the key problem is how higher courts can ensure compliance by lower courts.
Despite these different foundational assumptions, the team and agency approaches have both been employed successfully to study core questions regarding the judicial hierarchy, including: why hierarchy exists; how higher courts can best oversee lower courts; how learning takes place both within and across the levels of the judiciary; and how collegiality influences judicial decision-making. Yet, while our understanding of the judicial hierarchy has greatly increased in recent years, many questions remain, such as how judges learn and how to measure legal doctrine.
Article
Thomas M. Keck and Logan Strother
Scholars have long been interested in judicial impact—the ability of courts to meaningfully alter policy or politics—because judicial decisions shape law, have the potential to affect many people, and may even implicate democracy in a fundamental sense. Classic studies in this tradition concern the degree to which actors outside the court comply with judicial decrees, such as whether or not (or to what extent) schools desegregated in the wake of Brown v. Board of Education. However, scholars working in a variety of other traditions have likewise examined the impact of judicial decisions, though they have not always used those terms. For example, advocates of interbranch analysis have situated courts within broader ongoing policy processes, and in so doing have documented repeated instances in which policy outcomes were altered by the actions of lawyers and judges. Likewise, students of legal mobilization have documented the sometimes constitutive effects of legal ideas on a wide range of political identities, attitudes, and behaviors. In short, the concept of impact includes a variety of ways in which courts influence politics, and the field of judicial impact studies will continue to benefit from a vital diversity of methods of inquiry, subjects of analysis, and conceptions of law.
Article
Rebecca Hamlin and Gemma Sala
The judicialization of politics is an expression that has been widely used in the fields of comparative law and judicial politics alike since it first emerged in the 1980s. Yet, despite its ubiquity, it is difficult to ascertain its specific meaning because it is used to refer to such a wide range of court-related phenomena and processes. Despite its varying usages and meanings, there has been a puzzling lack of scholarly discussion over the scope of the term, and very little critical analysis of its use. This silence has impeded the project of comparative constitutional law. So it is necessary to disentangle and compare the many faces of judicialization that are used in various political science literatures. There are as many as nine distinct forms of the term that are regularly used; yet the various empirical strategies for measuring, defining, and documenting this phenomenon are often incommensurable, and further, the causes of judicialization frequently overlap and occasionally contradict one another. The popularity of this term has come at the cost of conceptual clarity, and this confusion has impeded both the project of building a comparative theory of judicialization, and efforts to have a coherent normative debate about its consequences. With the goal of theory building in mind, a systematic study of judicialization and its multiple usages can be a useful way to illuminate key questions for a new research agenda geared toward a deeper and more nuanced understanding of this term.
Article
Michael Zilis and Rachael Blandau
As of late 2020, the makeup of the U.S. Supreme Court consists of six generally conservative Republican appointees and three generally liberal Democratic appointees, one of the first times such a configuration has occurred in decades. In addition, contentious recent confirmation battles may have fundamentally altered public views about the Supreme Court. When it comes to public opinion about the Supreme Court, understanding the institution’s legitimacy and its relationship with political polarization is critical. Institutional legitimacy is a key currency for political bodies—and courts in particular—even as scholarly conceptions of legitimacy differ from popular commentary on the topic. To understand the nature of public opinion toward the Court in a polarized era, one must distinguish between specific support, a type of short-term satisfaction or approval, and diffuse support, commonly known as institutional legitimacy. Recent developments, including controversial confirmation battles and rulings, suggest that partisan and ideological cleavages may increasingly shape the Court’s legitimacy. Scholarship must continue to grapple with Supreme Court legitimacy in a time of political polarization.
Article
Charlotte Heyl
In a liberal conception of democracy, courts play an important role in facilitating the rule of law by controlling the abidance to rules and by holding the political branches of government accountable. The power of constitutional review is a crucial element for exercising horizontal accountability. Courts across Africa are vested with the power of constitutional review, and, generally speaking, their independence has substantially increased since the beginning of the 1990s—although African courts enjoy overall less independence than the global average for courts’ independence.
Within the African region, the level of judicial independence varies widely, between contexts that rarely allow judicial independence and contexts where courts have more power to challenge the government. Furthermore, across the continent, African courts experience undue interference—which frequently takes place informally. Informal interference can occur through the biased appointments of judges, verbal and physical threats, violent attacks, the payment of bribes, or the ouster of sitting judges. Informal networks—held together by ties based on shared educational trajectories, common leisure activities, religion, kinship relations, or political affiliations—are the channels through which such pressure can be transmitted. Yet judges also can actively build informal networks: namely, with the legal community, civil society, and international donors, so as to insulate themselves against undue interference and to increase institutional legitimacy.
Research has shown that the agency of judges and courts in signaling impartial decision-making, as well as in reaching out to society, is crucial to constructing legitimacy in the African context. In contrast, the explanatory power of electoral competition as an incentive for power holders to support judicial independence is not straightforward in the context of Africa’s political regimes, where the prospect of losing office is associated with financial, and in some cases even physical, insecurity. However, research on judicial politics in Africa is still only preliminary, because the field requires more comparative studies in order to fully reveal the political repercussions on Africa’s judiciaries as well as to delineate the scope conditions of the prominent theories explaining judicial independence.
Article
Florian Trauner and Ariadna Ripoll Servent
Justice and home affairs (JHA) is one of the most salient policy fields at European Union (EU) level. It deals with issues closely related to the sovereignty of member states including immigration, borders, and internal security. This article takes stock of the policy’s development and current academic debates. It argues that EU justice and home affairs is at a crossroads. Most EU actors underline the value added of European cooperation to tackle transnational threats such as terrorism and organized crime as well as the challenge of international migration. Indeed, the EU has increased its operational cooperation, data-sharing and legislative activities. The EU home affairs agencies, notably the European Police Office (Europol) and European Border and Coast Guard Agency (Frontex), have been substantially empowered. Yet JHA has also become a playing field for those attempting to politicize the European integration process. Therefore, recent years have seen major conflicts emerge that risk fragmenting the EU. These include controversies over the distribution of asylum seekers within the EU and the upholding of rule of law standards in some Eastern European states. Scholars have followed these developments with interest, contributing to a multifaceted and rich literature on aspects such as the dynamics of EU decision-making and the policy’s impact on the member states’ respect for fundamental rights and civil liberties. Promising avenues of further research include the implications of the politicization of the field and the consequences of ever more interconnected internal security databases and technologies.
Article
Catherine Boone
Land-related disputes and land conflicts are sometimes politicized in elections in African countries, but this is usually not the case. Usually, land-related conflict is highly localized, managed at the micro-political level by neo-customary authorities, and not connected to electoral competition. Why do land conflicts sometimes become entangled in electoral politics, and sometimes “scale up” to become divisive issues in regional and national elections? A key determinant of why and how land disputes become politicized is the nature of the underlying land tenure regime, which varies across space (often by subnational district) within African countries. Under the neo-customary land tenure regimes that prevail in most regions of smallholder agriculture in most African countries, land disputes tend to be “bottled up” in neo-customary land-management processes at the local level. Under the statist land tenure regimes that exist in some districts of many African countries, government agents and officials are directly involved in land allocation and directly implicated in dispute resolution. Under “statist” land tenure institutions, the politicization of land conflict, especially around elections, becomes more likely. Land tenure institutions in African countries define landholders’ relations to each other, the state, and markets. Understanding these institutions, including how they come under pressure and change, goes far in explaining how and where land rights become politicized.
Article
Since the 1980s, lesbian, gay, bisexual, transgender, and queer (LGBTQ) social movements worldwide have put significant energy into securing relationship rights. In the 1970s, however, the general sentiment in such movements in the Occident had been anti-marriage and anti-nuclear family. This changed in the 1980s due to three factors: the impact of HIV/AIDS, which emphasized how vulnerable same-sex families are; the rise of families headed by same-sex parents who did not have the same protections as their different-sex counterparts; and globalization, which transferred the ideas about same-sex relationships among movements and created energy and useful policy connections. During the 1990s, a wave of marriage alternatives spread around the world, sometimes extended by legislatures and other times by courts. The rise of alternatives has raised these questions: are they a temporary compromise on the path to marriage equality; are they a replacement for marriage that is free of its historical discriminatory heritage; or are they proposing an additional legal institution alongside marriage?
In the 2000s and since, marriage equality became realistic and more common as two dozen countries gradually extended marriage rights to same-sex couples, initially in Europe and North America, but later also in Australasia, in the entire Americas, and even—in fewer countries—in Asia and Africa. Incrementalism is the generally accepted theory for why progress occurs in some countries and delays in others. However, scholars have criticized the theory as descriptively inaccurate and, normatively, as portraying marriage as the final frontier for LGBTQ equality—thus contributing to that community’s emphasis on marriage equality to the neglect of other possible advocacy avenues. Further, the incrementalistic account should take into consideration that the path toward recognition is not linear and is international as well as national. Supranational courts have played an important role in the progress toward recognizing same-sex relationships; at the same time, the globalization of LGBTQ relationship rights has also resulted in a strong backlash and in regression in some countries.
Article
Attempts to analyze and understand how European law developed from a set of international treaties in the 1950s to a constitutional, proto-federal legal order, accompanied by a constitutional legal discourse today, has been a key concern in European studies in the last three decades. Legal scholars, political scientists, and sociologists have explored this from their specific disciplinary viewpoints and have produced a rich literature of sophisticated theoretical as well as empirical studies. Since the mid-2000s, historians have also finally—after years of negligence—taken an interest in European law and produced a new body of archive-based studies of the history of European law from 1950 to 1993. Based on primary sources drawn from private, national, and European archives, historians have contributed with much new empirical information and managed to uncover the social, political, and legal forces that have shaped European law in a qualitatively new way. The central argument is that the constitutionalization of European law was part of the broader battle over the political and institutional soul of the European construction. Even though the ECJ successfully constructed a European legal order that resembled and worked as a proto-federal constitution, the project ultimately suffered a defeat in not being able to codify this achievement in the Maastricht Treaty as part of a broader step toward a federal Europe.
Article
Uladzislau Belavusau
Since the 1980s, the law of the European Union (EU) has become a substantial transnational source of political empowerment for LGBT actors in Europe. The Rome Treaty (1957), which established the European Economic Community, contained a gender equality clause. In the 1990s, this provision was used to protect employment rights of intersex individuals via litigation schemes based on EU law. Yet the subsequent attempts to push forward a similar legal protection for gay and lesbian equality at the Court of Justice of the European Union (CJEU), based on the EU sex-equality clause, failed. Since then, the position of the LGBT community in EU legislative politics has evolved significantly through two dimensions. First, the Amsterdam Treaty (1997) extended the number of grounds protected against discrimination in EU law, adding sexual orientation, among others, to this palette. The Amsterdam Treaty permitted the EU Council to adopt the Framework Equality Directive 2000/78/EC, an instrument of secondary Union law that has safeguarded minimum standards of protection against homophobia in relation to matters of employment in all member states. This framework EU legislation has been used by LGBT litigants in their fight for equal working opportunities and pension rights at the CJEU. Second, the introduction of EU citizenship by virtue of the Maastricht Treaty (1992) and the respective secondary law (the EU Citizenship Directive 2004/38/EC) have paved the way for status recognition of same-sex spouses in the member states that have not previously recognized same-sex partnership or marriage. The future of LGBT legislative politics and the LGBT community in Europe will largely depend on whether EU law is able to extend protection beyond the current confines of the employment area, broaden its scope to cover social dimensions such as health and education, and fully recognize same-sex marriages and partnerships throughout the EU.
Article
Matthew Waites
The Commonwealth is the international governmental organization of states that emerged from the British empire, and since 2000 it has emerged as a focus for contestation relating to the regulation of same-sex sexualities, gender diversity, and diverse sex characteristics. Following colonial criminalizations focused on same-sex sexual acts, and later formal decolonizations, there have appeared many national movements for decriminalization and human rights in relation to sexuality and gender. The Commonwealth has emerged as a site of politics for some significant actors claiming human rights in relation to sexual orientation, gender identity and expression, and sex characteristics. This has been led by specific organizations of lesbian, gay, bisexual, and transgender (LGBT) people, increasingly with intersex people and allies, but it is also important to consider this in relation to queer people, understood more broadly here as people in all cultures experiencing forms of sexualities, biological sex and genders outside the social structure of heterosexuality, and its associated sex and gender binaries. A range of forms of activist and non-governmental organization (NGO) engagement have occurred, leading to shifts in Commonwealth civil society and among some state governments. This has required researchers to develop analyses across various scales, from local and national to international and transnational, to interpret institutions and movements.
The British Empire criminalized same-sex sexual acts between males, and to a lesser extent between females, across its territories. In certain instances there were also forms of gender regulation, constraining life outside a gender binary. Such criminalization influenced some of those claiming LGBT human rights to engage the Commonwealth. Research shows that a majority of Commonwealth states continue to criminalize some adult consensual same-sex sexual activity. Yet the history of struggles for decriminalization and human rights within states in the Commonwealth has led up to such recent important decriminalizations as in India and Trinidad and Tobago in 2018.
LGBT and queer activist engagements of the Commonwealth itself commenced in 2007 when Sexual Minorities Uganda and African allies demanded entry to the Commonwealth People’s Space during a Heads of Government meeting in Kampala. Activism has often focused on the biannual Heads of Government meetings that are accompanied by civil society forums. A particularly significant phenomenon has been the emergence of a “new London-based transnational politics of LGBT human rights,” evident in the creation from 2011 of new NGOs working internationally from the United Kingdom. Among these organizations was the Kaleidoscope Trust, which shaped the subsequent formation of The Commonwealth Equality Network as an international network of NGOs that became formally recognized by the Commonwealth. Significant developments occurred at the London Commonwealth Heads of Government meeting in April 2018; Prime Minister Theresa May expressed “regret” for past imperial criminalizations while announcing funding for Kaleidoscope Trust and other UK-based groups to use in international law reform work. These developments exemplify a wider problematic for both activists and analysts, concerning how LGBT and queer movements should engage in contexts that are still structured by imperial legacies and power relations associated with colonialism, persisting in the present.
