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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Federalism and LGBT Politics and Policy in the United States
Jami K. Taylor, Donald P. Haider-Markel, and Daniel C. Lewis
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
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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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.
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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.
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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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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.
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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.
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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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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.
Article
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.
Article
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.
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.
Article
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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Violence Against and Policing of LGBTQ Communities: A Historical Perspective
Courtenay W. Daum
Law enforcement has a lengthy history of policing LGBTQ communities. Throughout the 20th century, police utilized laws prohibiting same-sex sexual conduct to criminalize LGBTQ individuals, and to target public gathering places including gay bars. Sodomy prohibitions were supplemented by mental health diagnoses including assumptions about criminal pathologies among LGBTQ individuals and the government’s fear that LGBTQ individuals’ sexual perversions made them a national security risk to subject LGBTQ communities to extensive policing based on their alleged sexual deviance. The successes of the gay rights movement led the American Psychiatric Association to declassify homosexuality as a mental health disorder in the 1970s, and the U.S. Supreme Court’s decision that prohibitions on sodomy run afoul of the Constitution ended the de jure criminalization of LGBTQ individuals based on their sexual conduct.
Today, policing of LGBTQ communities consists of both overpolicing and underenforcement. Law enforcement regularly profiles some facets of LGBTQ communities in order to selectively enforce general criminal prohibitions on public lewdness, solicitation, loitering, and vagrancy—consistent with the goals of “quality of life” policing—on gay men, transwomen, and LGBTQ youth, respectively. The selective enforcement of these laws often targets LGBTQ people of color and other intersectionally identified LGBTQ individuals in order to criminalize their existence based on ongoing stereotypes about sexual deviancy. In addition, police regularly fail to recognize LGBTQ individuals as victims of crimes, with the exception of particularly heinous hate crimes, and do not adequately attend to their needs and/or subject them to secondary victimization. As such, the relationship between many LGBTQ communities and law enforcement continues to be characterized by antagonisms and mistrust.
Article
Legal and Policy Battles Over Same-Sex Relationships
Erez Aloni
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
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
Marriage Equality Policy Diffusion
Helma G. E. de Vries-Jordan
Marriage equality movements have been successful in achieving policy change in an increasing number of states. Hence, a growing body of scholarship has explored institutional and cultural factors that influence activists’ tactics and messaging and, in turn, contribute to marriage equality policy diffusion. Democracies with parliamentary, presidential, and semi-presidential systems, federal and unitary states with varying levels of centralization, and the presence or absence of constitutional anti-discrimination protections provide social movements with divergent political opportunity structures, contributing to dynamics in their tactical choices. In addition, the type of electoral system and party system, the presence of political parties that are movement allies, the use of conscience votes, the level of party discipline, the presence of out LGBT elected officials and straight political allies, and the degree of political will to enact policy change also impact activists’ strategic calculations. Finally, the use of personalized narratives in advocates’ messaging, the framing of marriage equality and LGBT rights as human rights norms, the adoption of family values frames to coopt opponents’ messaging, and the use of homonationalist versus homophobic discourses to justify policymaking decisions regarding same-sex marriage are explored. This article provides a comprehensive review of state-of-the-art research concerning all of the states that have legalized same-sex marriage as well as a detailed analysis of the mechanisms used to achieve policy change. After examining how different explanatory factors perform in accounting for the dynamics in marriage equality activism and policy convergence across a broad range of national contexts, new directions for future scholarship are suggested.
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.
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