According to recent U.S. census data, there are over 700,000 same-gender couples, of which 114,00 have children. U.K. census data further revealed over 200,000 same-gender parented families, and there is evidence that these numbers have been increasing in the last few decades. Between the late 1980s and early 1990s, research on the psychosocial well-being of LGB families was established with a focus on the potential impact of parents’ sexual orientation on the psychological adjustment of their children. Interest in LGB families was evidenced by the growing political and public attention, and became a central issue within the LGBT+ movement across the Western world, especially in Europe and the United States. However, attitudes toward LGB family policies have not evolved in a linear fashion insofar as they have accompanied the constant back and forth in LGB family policies and legislation. Negative attitudes toward LGB family policies are rooted in the negative evaluations of LGB individuals based on beliefs that LGB people are less fit as parents or unable to form and sustain healthy relationships because of their sexual or gender identity. However, these negative beliefs differ according to heterosexual individuals’ characteristics. Research has shown that men, older, less educated, non-White, politically conservative, highly religious, and authoritarian, as well as those who believe that homosexuality is controllable, strictly adhere to traditional gender roles and authorities, and do not have frequent or close contact with LGB individuals, hold higher levels of sexual prejudice toward LGB individuals and LGB family policies.
As of January 2020, same-gender marriage and parenthood are recognized in around 30 countries worldwide, although some countries recognize some forms of same-gender unions, but not marriage, whereas others recognize the right of LGB individuals to have children but not to marry. LGB family policies have progressed mostly through two different pathways: (a) the judicial pathway, which has involved litigation and court rulings on specific matters related to same-gender relationships and parenthood and which was undertaken in the United States, and (b) the legislative pathway, which has relied on political discussion and policy initiatives and was undertaken in the Iberian Peninsula (Portugal and Spain). The different pathways to equality in LGB family policies have different impacts for LGB individuals. In particular, the constant negative messages regarding same-gender couples as being unable to have healthy relationships have been shown to contribute to chronic minority stress and psychological distress among LGB individuals. By contrast, the legalization of same-gender marriage and parenthood provide important benefits and protections for LGB families in addition to promoting their well-being. Examining the evolution of attitudes and legislation regarding LGB family policies is important to inform further initiatives aimed at correcting inequalities for LGB families.
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Attitudes Toward LGB Families: International Policies and LGB Family Planning
Pedro Alexandre Costa
Article
Transgender-Specific Politics and Policy in Asia
Natasha Israt Kabir and Khadiza Tul Qubra Binte Ahsan
Acute discrimination has been witnessed across Asia regardless of individual countries’ specific policies towards transgender people. As individuals, it would be reassuring to believe that Article 1 of the UN Charter, which states that “All human beings are born free and equal in dignity and rights,” would encourage people to ignore gender differences. In different parts of Asia, even where transgender people have been officially recognized, their rights are fragile. Indeed, today activists focus more on women’s rights than on the rights of all sexual minorities, who as a consequence often live in extreme poverty and ill-health. The exclusion of the transgender community in governmental policymaking is another salient reason for their current living conditions. Even though transgender candidates participate in elections in most countries, their representation in parliaments is rare. Furthermore, violence toward the transgender community is such a common scenario that it has become normalized. Victims rarely get support because of legal loopholes and the unwillingness of the law enforcement agencies to help. Transgender and gender diverse people are not only targeted but also discriminated by law through a denial of gender marker change on official documents; the criminalization of the gender and sexual preferences of transgender and gender diverse people; the exploitation of public order, homelessness, and minor offenses; the criminalization of consensual homosexuality and intimacy; and police abuses even in the absence of a specific offense. Regardless of parliamentary legislation and other legal frameworks, policymakers and law enforcement agencies routinely operate outside the law to violate the rights of transgender and sexual minority people. Among the abuses reported by transgender persons are blackmail, extortion, public humiliation, and physical and sexual violence. If policies to socially integrate transgender and gender diverse peoples are not implemented, the state of the transgender community in Asia will not improve.
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Federalism and LGBT Politics and Policy in the United States
Jami K. Taylor, Donald P. Haider-Markel, and Daniel C. Lewis
The LGBT policymaking process in the United States is fragmented and LGBT citizens face different policy contexts depending on which local government and state they reside in. With a lack of national consensus on LGBT rights and the country’s federal political system, which allows states to have substantial policymaking authority, policymakers have created a diverse and decentralized set of policies. Indeed, this governmental system significantly shapes the opportunity structure for the adoption of LGBT inclusive policy. It allows for remarkable LGBT rights advances in some states and localities, but little to no progress in others. States in the Northeast and on the West Coast tend to have more LGBT inclusive policies than those in the South or Midwest. In some instances, localities in states that lack inclusive policies engage in compensatory policymaking to provide added LGBT protections. However, the ability of localities to do this is shaped by state law concerning home rule authority and whether the state legislature has decided to proscribe such action. When trying to advance LGBT rights policy, advocates must venue-shop for favorable policymaking circumstances. Favorable circumstances commonly include institutional control by Democrats or municipalities with greater diversity, higher education levels, and more people engaged in management, business, science, and arts occupations. Opponents to LGBT rights are engaged in venue-shopping as well, but they normally hold the defensive advantage of maintaining the status quo. Both proponents and opponents of LGBT rights have used the court systems of states and the national government to shape LGBT rights related policy.
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Legislative and Judicial Politics of LGBT Rights in the European Union
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.
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LGBT Rights and Theoretical Perspectives
Francis Kuriakose and Deepa Kylasam Iyer
The question of LGBT rights was first examined as part of gender and sexuality studies in the 1980s, predominantly in the United States. This was a result of the LGBT movement that had articulated the demand for equal rights and freedom of sexual and gender minorities a decade before. Since then, the examination of LGBT rights has traversed multiple theoretical and methodological approaches and breached many disciplinary frontiers. Initially, gay and lesbian studies (GLS) emerged as an approach to understand the notion of LGBT identity using historical evidence. GLS emphasized the objectives of the LGBT movement in articulating its identity as an issue of minority rights within the ambit of litigation and case law. However, the definition of LGBT identity as a homogeneous and fixed category, and the conceptualization of equality rights as the ultimate project of emancipation, was critiqued on grounds of its normative and assimilationist tendencies. Queer theory emerged in the 1990s as a counter-discourse to GLS, using the individual-centric postmodern technique of deconstruction as the method of analysis. This approach opened up scope for multiple identities within the LGBT community to articulate their positionality, and reclaim the possibilities of sexual liberation that GLS had previously obscured.
Subsequent scholarship has critiqued GLS and queer theory for incomplete theorization and inadequate representation, based on four types of counter-argument. The first argument is that queer theory, with its emphasis on self as an alternative for wider social interaction, concealed constitutive macrostructures such as neoliberal capitalism, as well as the social basis of identity and power relations. The second argument highlights the incomplete theorization of bisexual and transgender identities within the LGBT community. For example, understanding bisexuality involves questioning the universalism of monosexuality and postmodern notions of linear sexuality, and acknowledging the possibility of an integrated axis of gender and sexuality. Theorization of transgender and transsexual rights requires a grounded approach incorporating new variables such as work and violence in the historiography of transgender life. The third critique comes from decolonial scholarship that argues that intersectionality of race, gender, class, caste, and nationality brings out multiple concerns of social justice that have been rendered invisible by existing theory. The fourth critique emerged from family studies and clinical psychology, that used queer theory to ask questions about definitions of all family structures outside the couple norm, including non-reproductive heterosexuality, polyamorous relationships, and non-marital sexual unions. These critiques have allowed new questions to emerge as part of LGBT rights within the existing traditions, and enabled the question of LGBT rights to be considered across new disciplinary fronts. For example, the incorporation of the “queer” variable in hitherto technical disciplines such as economics, finance, and management is a development of the early-21st-century scholarship. In particular, the introduction of LGBT rights in economics to expand human capabilities has policy implications as it widens and mainstreams access of opportunities for LGBT communities through consumption, trade, education, employment, and social benefits, thereby expanding the actualization of LGBT rights.
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Transgender-Specific Politics and Policy in Europe
Camille Vallier and Djemila Carron
Transidentity raises numerous legal questions as it challenges the way the law fundamentally categorizes society in two different groups. The European legal landscape has evolved towards greater recognition of transgender people’s rights, notably in terms of legal gender recognition and non-discrimination, but many inequalities remain deeply rooted in the law.
Gender identity has increasingly been recognized as a ground of discrimination by national and regional instances in Europe, and in 2002 the European Court of Human Rights acknowledged the existence of a right to legal gender recognition under Article 8 of the Convention, in the famous Goodwin v. UK case. Since then, the conditions deemed admissible or not in order to access legal gender recognition and name change have been under scrutiny, and the Court took an important step ahead in 2017, when it held that compulsory sterilization and mandatory medical interventions leading with a high probability to sterility were inadmissible conditions for accessing legal gender recognition (A.P., Garçon, and Nicot v. France). However, other criteria for legal gender recognition remain unclear. Additionally, even when European instance decisively set a principle, the difficulty lies in the implementation on the national level, as the rights of transgender people are far from respected in practice. Legal gender recognition and access to gender confirmation treatment entail particular obstacles for minors, since the debate of whether self-determination regarding legal gender change and access to gender confirmation treatment should prevail over other public and private interests is even more pressing when children are concerned.
Many further obstacles remain, notably in the domain of parenthood and employment, access to transition-related treatments, and their reimbursement by health insurance. Additionally, transphobic hate crimes are rarely identified as such by national criminal legislations, and very few states collect statistics on the matter.
It remains difficult to draw general conclusions on transgender policies in Europe, as domestic laws are diverse and do not always match with international law, and national practices do not always comply with domestic and international law—with transgender people often being caught in a labyrinth of incongruent rules and practices.
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Historical Views of Homosexuality: European Renaissance and Enlightenment
Gary Ferguson
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.
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HIV Law and Policy in the United States: A Tipping Point
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.
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Citizenship of the European Union
Willem Maas
Citizenship is usually conceptualized as a unitary and exclusive relationship between an individual and a sovereign state; yet the European Union (EU) has developed the most advanced form of contemporary supranational citizenship. Citizenship of the European Union guarantees EU citizens and most members of their families the right to move, live, and work across the territory of the EU. It also guarantees the right to vote in local and European elections in the member state of residence, the right to consular protection outside the EU when the member state of nationality is not represented, the right to access documents or petition Parliament or the Ombudsman in any of the official languages, and the right to be treated free from nationality-based discrimination. Though on the political agenda since the postwar origins of European integration, EU citizenship was not formalized into EU law until the Maastricht Treaty. Since then, the Court of Justice of the European Union (CJEU) has declared that “EU Citizenship is destined to be the fundamental status of nationals of the Member States” and there are ongoing discussions about the relationship between EU and member state citizenship. In terms of identity, increasing numbers of Europeans see themselves as citizens of the EU, and questions of citizenship are at the heart of debates about the nature of European integration.
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Courts, the Law, and LGBT Politics in India
Saatvika Rai
In India, Section 377 of the Indian Penal Code (IPC) criminalized sodomy (penile nonvaginal sexual acts) in 1860 during British colonial rule. Under this law and the traditional cultural norms, the LGBT community faced harassment and violence from the police, medical establishment, religious and conservative organizations, and families. The Indian queer movement mobilized in the early 1990s, primarily through activism for legal reform. Criminalization of sodomy prevented the LGBT community from freely mobilizing in public spaces, reporting acts of violence and harassment, and coming forth for testing and treatment of HIV/AIDS, and therefore was an impediment to their health and well-being. LGBT rights groups challenged the constitutionality of Section 377 on the basis of violating the right to equity (Article 14), nondiscrimination (Article 15), freedom (Article 19), and life and privacy (Article 21).
Decriminalization of Section 377 has been a long, three-decade battle in the courts involving multiple judicial rulings. In 2009, the Delhi High Court decriminalized sodomy and declared Section 377 unconstitutional. The ruling was challenged by conservative and religious groups in the Supreme Court for going against social norms, threatening the institution of marriage, and promoting homosexual practices that would increase the spread of HIV/AIDS. In 2013, the Supreme Court heard the case, overturned the High Court ruling, and recriminalized Section 377. The Court declared that Section 377 was constitutional and applied equally to all persons. Thereafter, the Supreme Court passed three other judgments that directly impacted Section 377: It expanded the rape laws under Section 375 of the IPC to include penile nonvaginal acts (2013), provided legal rights to the transgender community as a nonbinary third gender (2014), and established the right to privacy under the Constitution (2017). The Supreme Court reassessed its decision, and on September 6, 2018, decriminalized Section 377 in a historic judgment. Legalizing queer sexuality was a positive step forward., yet considerable legal reform is still needed. The LGBT community still lack civil rights such as marriage, adoption, tax benefits, inheritance, and protection in the workplace. LGBT rights mobilization through the Indian courts has evolved from a focus on HIV/AIDS and health to broader human rights and privileges as equal citizens.
