This chapter provides an overview of the text, introducing the structure of the text and the author contributions. The chapter also provides an overview of the field of gender, sexuality and law, noting that this is a timely collection that marks a maturing of the field of Gender, Sexuality and Law. The chapter also observes that this collection will draw upon a range of perspectives, noting the diversity within Gender, Sexuality and Law, particularly in relation to diverse theoretical interventions for example in relation to a variety of feminist and queer perspectives.
Chris Ashford and Alexander Maine
Sue Wilkinson and Celia Kitzinger
We are a British lesbian couple who married legally in Canada, but subsequently had our marriage deemed a civil partnership in England and Wales. We brought a High Court case (Wilkinson v Kitzinger & Ors ) seeking a declaration of the validity of our marriage as a marriage in our home country, alleging breaches of our human rights. We lost our case, but continued to pursue marriage equality, which was eventually won in England and Wales (as well as in Scotland) in 2014. In this chapter we explain why we got married in Canada and discuss our experience of bringing (and losing) this High Court case, and its repercussions. We end by reflecting on the current situation of marriage equality worldwide.
Jens M. Scherpe
This chapter looks at the recognition of families outside of marriage, and especially same sex couples. In many jurisdictions this (also) happened through the introduction of registered partnerships. These regimes were created as either functional equivalents of or alternatives to marriage, and it is this function that then determined their fate in most jurisdictions when marriage was later opened up to same sex couples. England and Wales was an exception in this, and is looked at more closely. The chapter then argues that the focus on gender for relationship recognition is unnecessary and indeed counterproductive, particularly now that jurisdictions are beginning to move beyond the binary for legal gender. The chapter concludes that relationship recognition needs be rethought beyond the binary, beyond conjugality and beyond coupledom.
This chapter explores the legal effects of transnational forms of political, diplomatic and financial action adopted to support and advance LGBTI rights. In particular, it addresses the way in which political strategies that rely on simplistic or dichotomized approaches to transnational LGBTI rights, based in simple binaries such as Global North/Global South or progressive/regressive, can have unexpected and problematic legal consequences. The chapter draws upon recent critical approaches to transnational LGBTI rights to examine three forms of transnational pressure for LGBTI rights: quiet diplomacy, public diplomacy and financial conditionalities. It demonstrates that all three forms of pressure were present in the transnational response to the Ugandan Anti-Homosexuality Act 2014 and explores the effects of these forms of pressure. The chapter concludes that transnational action that remains trapped within dichotomous or dualistic logics will have only limited long-term efficacy.
Tingting Liu and Jingshu Zhu
This chapter presents research on the strategies that Chinese LGB activists adopt in order to cope with the legal and political environment of the Chinese regime. Anchored in the peculiarities of the Chinese legal environment, the chapter considers two qualitative case studies. The first case involves Li Yinhe, a former professor with the Chinese Academy of Social Sciences, who has repeatedly asked representatives at the National People’s Congress (NPC) to present a Chinese Same-Sex Marriage Bill as an amendment to the current marriage law. The second case comes from the study of the impact of litigation brought by Sun Wenlin and his same sex partner Hu Mingliang against a local civil affairs bureau in 2016. The chapter attends to the legal and rhetorical strategies adopted by these activists in order to carefully frame their objections to ensure they complied with the party-state’s emphasis on marital harmony (hexie) and social stability.
Melanie Judge and Dee Smythe
The chapter explores the relationship of law to gender and sexual rights and politics in postapartheid South Africa. The turn to democracy enabled transformative possibilities for gender and sexual justice in which law was enlisted to undo the racial, sexual and gender inequalities and discriminations of the past. Through a focus on two historic moments of political protest that took place in 1956 and 2016, respectively, and in the face of the persistence of gender violence, the chapter interrogates gender politics and its entanglements with, in and against law.
Homeless lgbtq youth inhabit a peculiar location at the intersection of poverty and sexual shame. Privacy doctrine, which has done much to advance the mainstream gay rights agenda, cannot protect them. They are without private property, subject entirely to constraints on the use of public space on which they depend. Because they are sexually suspect, gender nonconforming, and very often of color, they are perfectly suited to bear the shame that sustains the dignity enjoyed by more fortunate gays. When homeless lgbtq youth urinate, have sex, change clothes, or otherwise expose their naked bodies, they disgust -or, in doctrinal terms, they are objectively shocking. This renders them vulnerable to law enforcement attention, especially for violations of lewdness and indecency laws.
Paul Johnson and Silvia Falcetta
This chapter provides a critical analysis of the jurisprudence of the European Court of Human Rights in respect of same sex marriage. We begin by exploring the ways in which human rights law provides a crucial framework through which to challenge legal restrictions on same sex marriage. We then provide a critical consideration of the jurisprudence that the Court has established on same sex marriage under Article 12 of the European Convention on Human Rights. We discuss a number of aspects of the Court’s approach to same sex marriage which, we argue, are inconsistent with its general jurisprudence on the right to marry and reinforce a heteronormative understanding of marriage. In conclusion, we argue that the Court has interpreted Article 12 in a way that ensures that the right to marry guaranteed by the Convention remains, in practical and effective terms, inapplicable to same sex couples.
LGBTI people migrate alone and with their family members. EU law and ECHR law both protect family life and proscribe discrimination based on sexual orientation. The chapter deals first with the horizontal dimension of families and considers how same gender couples enjoy reunification rights under Article 8 ECHR and under EU law, with special regard being given to Directive 2004/38. Judgments such as Oliari, Pajic and Coman provide a first step towards a guarantee for ‘a normal family life’ for rainbow families moving across European borders. The focus then moves on to the protection of children migrating with their same gender parents and highlights the relevance of their dependency on legal or de facto parents and that of the best interests principle. Finally, freedom of movement is viewed from the perspective of trans and intersex persons, arguing that ECtHR case law sets standards that EU Member States must consider when dealing with changes occurring elsewhere in one’s legal gender, including emerging nonbinary gender markers.
Helen Fenwick and Daniel Fenwick
At the present time the majority of ECHR contracting states have introduced forms of registered partnerships for same sex couples, in some instances as a stepping stone to same sex marriage. The Strasbourg Court, as this chapter will argue, is close to recognizing a right to such a partnership for same sex couples under Articles 8 and 14 ECHR or Article 8 read alone. In relation to certain contracting states taking a stance opposed to, or reluctant/equivocal as to formalization of same sex relationships, the Strasbourg stance is potentially crucial. Thus this chapter argues that the Strasbourg Court should cease to hesitate on the brink of recognizing a right to such formalization, and confirm that it exists within the framework of the ECHR.