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Article

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.

Article

Family Law and Policy for LGBTQ Individuals and Families: Adoption, Foster Care, Assisted Reproduction, and Parental Rights  

Naomi G. Goldberg and Amira Hasenbush

LGBTQ-headed families face a complicated legal landscape when it comes to legal recognition. The 2015 U.S. Supreme Court ruling , permitting same-sex couples nationwide to marry, substantially shifted the legal landscape for lesbian, gay, bisexual, transgender, and queer (LGBTQ) parents. Many families now have access to legal recognition through joint adoption, stepparent adoption, and the long-held legal presumptions of parentage for children born to married parents. Yet access to marriage has not fully created the necessary legal protections for the diverse ways in which LGBTQ-headed families form and live their lives. The patchwork of legal protections across the states means that many LGBTQ-headed families lack needed security, stability, and legal recognition.

Article

Courts, the Law, and LGBT Rights in Asia  

Holning Lau

Courts have played an integral part in advancing the rights of lesbian, gay, bisexual, and transgender (LGBT) communities in many parts of Asia. Yet courts in other parts of Asia have entrenched LGBT subordination. A vast expanse separates Asia’s most progressive LGBT judicial decisions from the most oppressive. This divergence stems from various factors, including differences among Asian courts’ judicial philosophies and cultural backdrops. Judicial developments in Asia have disrupted conventional narratives in Anglophone literature about LGBT rights. Conventional wisdom says there is a standard sequence for developing LGBT rights. It is commonly believed that countries will protect sexual orientation rights before gender identity rights; that they will legislate against discrimination before legalizing same-sex marriage; and that legal protections of LGBT rights begin in the West, and then the rest of the world subsequently imports these legal constructs. Developments in Asia have, however, challenged these narratives. While many Asian courts have galvanized reforms to protect LGBT rights, it is important to remember that these courts are nonetheless constrained in their ability to effectuate change. Case studies from Asia demonstrate that protecting LGBT rights often requires political branches of government to cooperate with courts. Political actors may resist implementing court-ordered reforms, especially if public opinion does not support the reforms.

Article

Litigating Transgender Employment Rights in the United States  

Susan Gluck Mezey

Discrimination against transgender or gender nonconforming individuals in the workplace affects hiring, firing, promotions, salaries, and benefits. Most states have no laws prohibiting employment discrimination based on gender identity, and, in the absence of federal law, transgender workers have turned to the courts to seek equal rights on the job. Transgender plaintiffs often file suit under Title VII of the 1964 Civil Rights Act, the law prohibiting sex discrimination in employment. The defendants argue that since the statute does not explicitly ban discrimination on the basis of gender identity, Congress did not intend to include transgender or gender nonconforming individuals as members of a class protected by Title VII. The cases revolve around the question of whether the ban on sex discrimination in the law should be narrowly construed to apply to men and women as determined by their biological status or whether it should be broadly construed to prohibit discrimination against individuals because of their gender identity or gender expression. Prior to 1989, suits brought by transgender plaintiffs were dismissed by judges who agreed with employers that Congress did not intend Title VII to guarantee their employment rights. In Price Waterhouse v. Hopkins (1989), the Supreme Court held that the statute forbids an employer from making a negative employment decision because an employee’s behavior does not conform to stereotypical norms of behavior. Hopkins set the stage for the next several decades of litigation over the employment rights of transgender employees, and, although the courts were initially reluctant to allow transgender plaintiffs to benefit from Title VII, within a few years, most broadened their interpretation of the law. Over time, the courts adopted two theories: first, the gender nonconformity approach in which discrimination based on sex stereotyping violates Title VII; second, the per se approach in which discrimination on the basis of gender identity is equated with discrimination under Title VII. In 2012, the Equal Employment Opportunity Commission (EEOC) adopted both theories of Title VII in Macy v. Holder (2012). In 2014, the Justice Department formally committed itself to interpreting Title VII to apply to gender identity. In October 2017, the department shifted its position on Title VII, negating the per se theory of gender identity and emphasizing that the statute only applies to employer actions based on biological differences between men and women. In addition to Title VII claims, transgender plaintiffs have filed job discrimination actions under the Americans with Disabilities Act (ADA), the law prohibiting discrimination against individuals because of their disabilities. Although the statute explicitly excludes gender identity disorder, two federal district courts have interpreted it to cover transgender persons with disabilities, with a third disagreeing. Tying claims to the ADA has benefits as well as drawbacks.

Article

Courts and Same-Sex Marriage in Latin America  

Maximiliano Campana and Juan Marco Vaggione

Same-sex marriage has become one of the LGBT movement’s main demands in Latin America in the past decade. Argentina was the first Latin American country to recognize same-sex marriage in 2010, and it has been replicated in other countries such as Brazil, Uruguay, Colombia, Ecuador, Costa Rica, and Mexico. In all these cases, the courts have been an important ally of the LGBT movement, generating the constitutional grounds and decisions for the recognition and expansion of the rights of same-sex couples. In this sense, litigation has proved to be a powerful strategy for LGBT groups for their demands of recognition, and in the analyzed cases, the judiciary has been receptive to these petitions and claims assuming different roles. The litigation experience in Latin America has been shaped by the U.S. litigation model for the advancements of civil rights, a model that has had an impact in the LGBT campaigns for same-sex marriage, and as a result it is possible to identify different roles that the Latin-American courts have played in protecting same-sex couples and legally recognizing their partnerships in the region. Thus the historical developments of the strategic litigation have been crucial for the recognition and advancement of rights, generating a type of litigation that was originated in the United States and later replicated in Latin America, thanks to institutional changes and successful experiences of same-sex marriage litigation. However, the courts have assumed different roles when recognizing the right to marriage between same-sex couples in the region, according to the legal, social, political, and international context where they are inserted, showing that the “politization of the justice” and the “judicialization of politics” are two interconnected procceses that combine in different and complex manners when debating sexuality in the region.

Article

HIV/AIDS Politics and Policy in South Asia  

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.

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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.

Article

Transgender Law and Policy in the United States  

Shannon Gilreath

Transgender people have a complicated history in U.S. law and policy. Once thought of as a symptom of homosexuality, gender nonconformity has long been the subject of social disapprobation and legal sanction, including criminalization. Beginning in the 1950s, an emergent interest by the medical community in individuals suffering from “gender dysphoria” precipitated an identity politics primarily organized around a goal of access to competent medical care and treatment for transsexual individuals. In ways both significant and ironic, this medicalization both promoted a binary ideology of gender, most obvious in concepts like male-to-female or female-to-male transsexualism, and created space for more transformative concepts of gender fluidity and transgender identity to emerge. Long conceptualized as a kind of subsidiary of the gay and lesbian rights movement in the United States, a status that entailed considerable turmoil, the transgender movement, especially since the 1990s, has emerged as a vocal and relatively effective rights lobby in its own right. The advent of the Trump administration presents a pivotal moment that will likely test not only the durability of recent policy gains but also whether those gains can be expanded in any significant measure.

Article

Transgender-Specific Policy: Gender Identity Inclusion in Public Accommodations  

Andrew R. Flores and Justin O'Neill

In the early 21st century the public debates about the inclusion of gender identity in public accommodations municipal ordinances and statewide and national laws represent another step in the ongoing struggle of the social movement seeking to advance the rights and liberties of lesbians, gay men, bisexual, transgender, and other queer (LGBTQ) people. Situating these current debates in the larger context of the LGBTQ movement connects this emergent issue to that broader struggle. The LGBTQ social movement and its counter-movement, often referred to as the Religious Right, have had numerous battles over social policy since the late 20th century. Importantly, movements and their counter-movements identify winning strategies and, at times, tactically innovate so as to effect a shift in current tactics in light of a failing strategy. Tactical innovation includes shifting policy debates, which has been a primary tactic of the counter-movement to LGBTQ rights. Transgender rights broadly and public accommodations policies specifically represent a tactical innovation in the ongoing development of LGBTQ rights in the United States. How has gender identity inclusion in public accommodations been addressed in politics, policy, and law? There are numerous dimensions of gender identity public accommodations policies as understood in social movements, American law, public policy and administration, public opinion, and sociology and social psychology. Public accommodations are a constant source of public contention. The legal landscape in constitutional, federal, state, and municipal approaches to these policies remains uncertain, and there are competing interpretations of law in whether gender identity protections are covered in existing federal statutes. The rhetoric of the policy debates in both state legislatures and initiative and referendum campaigns primarily focuses on the potential harms to women and girls brought about by men taking advantage of such laws to assault them in sex-segregated public facilities. An account of public opinion about these policies also shows that American adults are far more divided about transgender people using restrooms consistent with their current gender identity than other aspects of transgender rights such as employment nondiscrimination policies. Experimental interventions, such as in-depth conversations encouraging people to consider the day in the life of a transgender person, reduce transphobia and make people more resistant to arguments opposed to the inclusion of gender identity in public accommodations laws. Finally, some have questioned whether sex classifications are needed in public policy and how current nondiscrimination laws achieve their stated goals without such a system. Further development and inquiry absolutely are needed in all these areas.

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LGBT Discrimination, Subnational Public Policy, and Law in the United States  

Christy Mallory and Brad Sears

LGBT people in the United States continue to experience discrimination because of their sexual orientation and gender identity, despite increasing acceptance of LGBT people and legal recognition of marriage for same-sex couples nationwide. This ongoing discrimination can lead to under- and unemployment, resulting in socioeconomic disparities for LGBT people. In addition, empirical research has linked LGBT health disparities, including disparities in health-related risk factors, to experiences of stigma and discrimination. Currently, federal statutes in the United States do not prohibit discrimination based on sexual orientation or gender identity in employment, housing, or public accommodations, leaving regulation in this area primarily to state and local governments. This creates a limited and uneven patchwork of protections from discrimination against LGBT people across the country. Despite public support for LGBT-inclusive non-discrimination laws across the country, in 28 states there are no statewide statutory protections for LGBT people in employment, housing, or public accommodations. To date, only 20 states and the District of Columbia have enacted comprehensive non-discrimination statutes that expressly prohibit discrimination based on both sexual orientation and gender identity in all three of these areas. One additional state has statutes that prohibit sexual orientation discrimination, but not gender identity discrimination, in these areas. One other state prohibits discrimination based on sexual orientation and gender identity in employment and housing, but not in public accommodations. In states without statutes that prohibit discrimination based on sexual orientation and/or gender identity, there are other policies that afford LGBT people at least some limited protections from discrimination. In some of these states, state executive branch officials have expanded non-discrimination protections for LGBT people under their executive or agency powers. For example, in three states, state government agencies have expanded broad protections from sexual orientation or gender identity discrimination through administrative regulations. And, in 12 states without statutes prohibiting discrimination against LGBT people, governors have issued executive orders that protect state government employees (and sometimes employees of state government contractors) from discrimination based on sexual orientation and gender identity. In addition, local government ordinances provide another source of protection from discrimination; however, these laws are generally unenforceable in court and provide much more limited remedies than statewide non-discrimination statutes. In recent years, lawmakers have increasingly attempted to limit the reach of state and local non-discrimination laws, which can leave LGBT people vulnerable to discrimination. For example, some states have passed laws allowing religiously motivated discrimination and others have passed laws prohibiting local governments from enacting their own non-discrimination ordinances that are broader than state non-discrimination laws. While most of these bills have not passed, the recent increase in the introduction of these measures suggests that state legislatures will continue to consider rolling back non-discrimination protections for LGBT people in the coming years. Continued efforts are required at both the state and federal levels to ensure that LGBT people are fully protected from discrimination based on their sexual orientation and gender identity throughout the United States, including federal legislation and statewide bills in over half the states.

Article

LGBTQ Family Law and Policy in the United States  

Erin Mayo-Adam

There is a growing body of research on law and policy concerning lesbian, gay, bisexual, transgender, and queer (LGBTQ) family law and policy. LGBTQ families have existed for centuries despite laws and policies that criminalize their relational practices. However, the legal landscape has shifted a great deal over the past few decades, in large part due to the increased visibility of LGBTQ kinship networks and new constitutional protections for same-sex marriage. With this said, legal protections for LGBTQ families vary widely by state, especially parental, adoption, and foster care rights. Historically, family law and policy has fallen within the realm of state power, with some important exceptions (e.g., the Supreme Court has recognized a fundamental right to parent for legal parents). For this reason, there are broad protections afforded to LGBTQ kinship networks in some states, especially those with large urban and more liberal populations, and barriers that stand in the way of LGBTQ parental rights in other states that are more conservative or rural. The legalization of marriage equality in Obergefell v. Hodges did standardize some protections for same-sex couples in traditional relationships across the United States. Yet the case also presents new problems both for LGBTQ families that are more heteronormative and those that are not because it fails to recognize a fundamental right to parent for LGBTQ people who create non-biological families and live non-traditional lives. In addition to these legal and policy changes, social scientists have used both qualitative and quantitative methodologies to shed light on the problems faced by LGBTQ families politically and legally. Researchers have examined how LGBTQ families attempt to protect their ability to parent in family court, how LGBTQ kinship networks identify innovative legal and political strategies aimed at overcoming barriers to legal recognition, and how LGBTQ identity is both constituted and made invisible through family law. Furthermore, scholars have produced a wealth of research refuting the myth that LGBTQ people are inadequate parents since the late 1980s and this research has been used in court cases across the United States to facilitate the legal recognition of LGBTQ families. Despite this research, gaps in both scholarship and legal recognition remain. Scholarship remains startlingly sparse given the legal and political barriers that stand in the way of LGBTQ family recognition, especially for LGBTQ people of color and trans and queer people. In order to address this gap, scholars should devote more resources to research on families that include LGBTQ people of color and trans and queer people, research on non-traditional queer kinship networks, and research on the unique ways that LGBTQ families are responding to political and legal barriers at the local level.

Article

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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Theoretical Perspectives on Subnational Public Policy and LGBT Law  

Jason Pierceson

Subnational policymaking is central to LGBT politics and law, in contrast to other arenas of policymaking for marginalized groups. With barriers to national policymaking in Congress and in the federal courts, LGBT rights activists have leveraged opportunities at the state and local levels to create LGBT-supportive policies. Opponents have also used subnational politics to further their agenda, particularly direct democracy, while LGBT rights activists have used elite politics, such as state courts, effectively. Subnational LGBT politics is also marked by a significant variety in policy outcomes, with a notable urban and suburban versus rural divide in policymaking and in the presence of openly LGBT elected officials. The case of LGBT policy and law has caused scholars to rethink questions such as the role of public opinion in state policymaking, morality politics, and courts and social change.

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.

Article

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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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.

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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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LGBTI Transnational Law: Sex as Crime, Violence as Control  

Berta Esperanza Hernandez-Truyol

It is impossible to divorce the criminalization of LGBTI conduct from the social, institutional, and extra-legal violence to which individuals within this community are subjected, as laws are a mirror of a society’s values. The foundation for laws that punish non-hetero-normative sexualities and gender expressions are societal constructions of hetero-normativity. Lawmakers codify their generalized views about what roles persons should fulfill or perform based on preconceptions regarding the attributes, behaviors, or characteristics of a person, class, or group. Non-hetero-normative sexual orientations and gender identities challenge traditional notions of sexuality and gender. Violence is used as a way to control the bodies of those who exhibit non-heteronormative traits and values, as well as a form of social control to reinforce sexual and gender norms. The distinctions countries create in the targeted illegality of “male” and “female” homosexuality demonstrate the conflation of sex, gender identity, and sexual orientation. Laws that ban expressive conduct and effectively eliminate lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons from public discourse have historical roots in Christian and Muslim religious traditions. Whether codified or not, violence against LGBTI individuals is a consequence of deeply embedded gender inequality. Such inequality manifests in social and physical violence that ultimately punishes, controls, and erases LGBTI persons. Although international bodies have reacted against such violence by ratifying legal instruments to protect the LGBTI community, changing social conditions and preconceptions has proven to be the most effective route to protecting LGBTI persons’ human rights.

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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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Europe’s Supranational Courts and LGBT Rights  

M. Joel Voss

Europe has some of the most powerful human rights legal institutions in the world including two supranational human rights courts—the Council of Europe’s European Court of Human Rights and the European Union’s Court of Justice (hereafter, together—the Courts). After decades of relative quiet, the Courts have begun hearing more cases concerning LGBT rights. Judgments of the Courts have advanced some facets of LGBT rights like anti-discrimination in the workplace while disappointing gay-rights advocates in other areas, for example family life and asylum. Scholarship on European courts and LGBT rights is not as developed as scholarship on norm advocacy or policy diffusion within states in Europe. The research that does exist looks at how decisions by the European Court of Human Rights and the European Court of Justice deal with current European law, how the institutions are designed, or how the supranational courts may act as agents of change or status quo institutions in shaping wider European behavior. This lack of newer research on the Courts presents ample opportunity for new avenues of research that examines not only how decisions are made at the Courts but also how states implement decisions and how states view the legitimacy of each Court.