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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

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.

Article

The Evolution of Same-Sex Marriage Policy in the United States  

Sarah Poggione

On June 26, 2015, the U.S. Supreme Court determined that same-sex couples have the right to marry, and newspapers across the country declared that gay couples could now exercise this right in all 50 states. While the Obergefell decision was an important moment in history and a significant victory for the LGBT movement, it was not an immediate and complete change in policy. Rather, the change emerged slowly over decades from numerous complex interactions among federal, state, and local governmental actors. These same actors continue to influence marriage equality even after the Supreme Court’s historic ruling. A careful consideration of the path of marriage equality demonstrates the importance of federalism in the evolution of policy in the U.S. context. Not only does the extent of federal involvement influence state decision-making, but state policies also respond to the policymaking processes in other states. Examining the progression of marriage rights for same-sex couples also illustrates how variation in state government institutions shape policy outcomes in the U.S. system. For example, aspects of state courts such as judicial capacity influence the nature of state policy responses on the issue of gay marriage. Finally, focusing on marriage equality provides an opportunity to consider how institutions of government and political actors strategically interact to influence the policymaking process. For example, advocacy coalitions make strategic choices to focus on levels and institutions of government that are more responsive to their interests. Overall, same-sex marriage policy and the scholarship that investigates it highlight the complex and sometimes convoluted development that characterizes the policymaking process on many important issues in American politics and society.

Article

LGBT and Queer Politics in the Commonwealth  

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.