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Sexy Families for Sexy Citizens?

The (non)recognition of same-sex families in the human rights discourse

Master's Thesis 2004 86 Pages

Politics - International Politics - Topic: Public International Law and Human Rights

Excerpt

Table of Contents

1 INTRODUCTION

2 SUBJECT-CREATION: SEX, GENDER AND EMBODIMENT
2.1 “HOMOSEXUALS” AND THE ESSENTIAL CONSTRUCTION OF “LESBIGAYS”
2.2 CATEGORISATION AND THE STRUGGLE FOR (EQUAL) RIGHTS

3 SUBJECT DIFFERENTIATION - LIBERAL SOCIETIES
3.1 PUBLIC AND PRIVATE - SOCIAL AND SEXUAL
3.2 MARRIAGE AND FAMILY
3.3 CITIZENSHIP AND GENDER
3.4 SAME-SEX PARTNERSHIPS AND FAMILIES
3.4.1 Filiation
3.4.2 Sexuality and Parenting - Questions we don ’ t ask

4 SUBJECT-(NON)-RECOGNITION - “THE FAMILY” IN INTERNATIONAL HUMAN RIGHTS LAW
4.1 EUROPEAN CONVENTION ON HUMAN RIGHTS
4.2 EUROPEAN UNION
4.3 THE RIGHTS OF THE CHILD
4.4 SEXUAL RIGHTS AND REPRODUCTIVE RIGHTS

5 SUBJECT RE-DEFINITION: THE SEXY HUMAN FAMILY?
5.1 UNIVERSALLY SEXUAL?
5.2 EQUALLY DIFFERENT?
5.3 POLITICALLY AUTONOMOUS?

6 SUBJECTED? - CONCLUSION

7 BIBLIOGRAPHY

Abstract

Over recent years, sexual minorities have growingly gained attention in the human rights discourse. This attention focuses on the de-criminalisation and anti-discrimination of lesbians, gays and others. However, states and human rights instruments remain unwilling to view those belonging to these newly established minorities in their complexity as social individuals and citizens. This makes it very difficult for sexual minorities to do things considered quite “normal” and essential for others, such as living a family life and raising children.

Raising the topic of same-sex families within a human rights discourse remains highly controversial. “Family,” however, is more than a benevolent luxurious minority topic in modern welfare states. The human family constitutes the foundation of the human rights regime and as such is a fundamental cross-sectional institution and mechanism within liberal-democratic societies. Denying lesbians and gays the moral capacity of taking responsibility for partners and children, assigns them an inferior second-class status in society. Framing this distinction with categorical justifications by according them a special minority status, only supports hierarchical distinctions. It needs to be questioned, whether a specific heteronormative life-long man-wife conception of partnership can serve as the (universal) standard for marriage, family and the conception of a “good citizen” and fully recognised member of society or whether it is not this concept of “normality” that needs to be questioned rather than the assumed specificities of excluded “others.”

1 Introduction

Two premises inspired the title of this thesis: first, our societies in general and debates about sexual minorities in particular, are extremely sexualised. By focusing on sexual orientation, which is believed to be a major difference, lesbians and gays are not seen in their complexity as individuals and citizens, which makes it very difficult for them to do things that are considered quite “normal” for other citizens such as raising children and living a family life. Secondly, raising the topic of same-sex families within a human rights discourse is inherently controversial. Are there not more severe problems to solve than that of a privileged minority in well-established welfare states gaining access to family status? Indeed, there might be. But this work takes a different perspective. Family is not a single minority issue as its conception is a fundamental cross-sectional institution and mechanism within modern liberal societies. Family connects the public and private spheres of liberal societies, and it both entails rights and duties against the state and challenges principles of non-discrimination and equality on a scale that goes far beyond presumed lesbian and gay motivations to reduce their income-taxes and unfairly adopt other people’s babies.

Lesbian and gay existence is more than sexual preference. If homosexuals were the same as heterosexuals everywhere outside the bedroom, there would be no need for the institutions of the lesbian and gay community that have been built specifically to counter oppression and create safe spaces.1, At the same time, their lifestyles are so diverse that the terms “lesbian”, “gay”, and “homosexuality” are “empty containers”2. Lesbians, gays, bisexuals and transgenders are currently becoming recognised as “sexual minorities.” Respect for human rights, including the protection of minorities, which has been mentioned in the Copenhagen criteria3 as well as in numerous other human rights instruments and legal documents, goes beyond governmental obligations merely to withdraw from discriminatory laws and practices. Human rights entail the obligations to respect, to protect and to promote these rights. The protection and recognition of groups and individuals as equal members of society requires positive action by governments to eliminate discrimination more generally.

The 1948 Universal Declaration of Human Rights proclaims in its Preamble that the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the World.”4 Reference to the “human family” underlines the fundamental value of “family” in societies and for the individual. It is therefore highly dubious how states and the “human family” can counter charges of discrimination - in this case of lesbians and gays - if they refuse to recognise their existing families and their right to found families.

The starting point for this work has been the assumption that it is not sufficient to counter discrimination solely in the public sphere. The concentration on the public - the arena of civil and political rights - has from the beginning of the human rights era been a comfortable but partial priority. Family and politics stipulate and interfere with each other and marriage serves as legal identification of families as a political unit. So, how can human rights law and democratic societies seriously promote human dignity and equality, as it is recognised in various international and regional human rights treaties,5 while part of the same societies remain excluded from its very foundations? The recognition of same-sex families currently relies predominantly on the tolerance towards homosexuals and other sexual minorities. In this context, the predominant homosexual/heterosexual distinction, derived from the gendered male-female division of humanity, serves as the main argument for granting or denying individuals or couples the right to bear and raise children. This is a very one-dimensional approach towards a much more complex subject.

One main deficit in human rights discourses is precisely that its categorical approach fails to see their subjects as human beings constituted socially, nationally, religiously, by gender or otherwise. Sexual orientation is seen as an end in itself and not positioned in context with family policies, reproductive rights and, especially when lesbian women are concerned, women’s rights. Also it is not placed in context with other forms of discrimination, such as race, ethnicity, religion, or social status. The roots of these discrimination mechanisms remain veiled. Differentiated exclusion and re-inclusion of categorised groups of individuals has led to a variety of single-issue, and often contradictory lobby-groups, who, in failing to cooperate, also fail to see the common problems at the foundation of human rights discourses. Discriminations within the private sphere thus remain marginalized.

One major thesis of this work is that anti-discrimination efforts, which limit themselves to efforts in the economic sphere and decriminalisation of relationships only in the private, fail to establish equality, dignity and the freedom of choice. Such anti- discrimination maintains and re-affirms hierarchical distinctions by reiterating the notion that particular groups do not conform to a predefined norm. The individual freedoms of these groups continue to depend on the discretion of the majority and they are not accepted as full citizens. It does make a difference whether one becomes a lesbian citizen or a citizen who has the free choice to live as a lesbian. This perception includes the fact that being lesbian or gay is not an infertile option. Sexual orientation as such does not correlate to reproductive capability. Lesbian and gay relations do not lead to infertility, nor do they exclude the wish or given fact of having children. As “family” is a fundamental institution in societies, the exclusion of lesbian and gay families by respective states has major implications not only for family life itself but for other social, political and economic aspects of cit]izenship as well. From this perspective it follows that recognition of sexual minorities is far more than merely the legalisation of their partner-relationships.

Same-sex families influence our conceptions of filiation and kinship and eventually the rights and status of citizens. The references to family, brotherhood and similar kinship metaphors in human rights instruments, are far from accidental. They parallel references to common origins, cultures and traditions in modern nation-building processes. Both, human right, and modern (democratic) nations, are built upon the liberal concepts of societies based on individual membership within the public-private divide, in which citizenship entails full membership in society with certain rights that are enforceable against the state. Apart from myths and symbols, rights create solidarity among otherwise anonymous members of a community. In this context, the non-recognition of sexual rights of non-heterosexuals and of same-sex parents as parents eventually leads to status as second-class citizens.

The underlying main thesis of this work is that the freedom of lesbians, gays and other sexual minorities relies less on the specific recognition of sexual minorities as a distinct group but instead depends upon broader understandings of gender equality and the , concepts of autonomy, citizenship and social justice within the public and private spheres of society. Many feminist and queer theorists have drawn attention to inherent gender inequalities within liberal societies and the human rights framework. These perspectives towards human rights will be referred to throughout the work both in order to make the construction of gender hierarchies visible and to specifically take lesbian existences and families “on board” that are mostly left invisible.

Speaking about same-sex families first requires a closer examination of homosexuality. What are homosexuals, lesbians and gays? How are sex, gender and sexual orientation understood and why do we consider these categories noteworthy in the first place? How do they relate to each other? And how does sexual orientation relate to values such as marriage and family or to parenting capabilities? At times, the use of classifications hinders progress as much as it overcomes obstacles. Categories not only identify people, but they are a powerful means to divide them along defining lines the moment they are drawn. It seems that while such categories, as important as they are in granting people immediate protection from state abuse in many countries, face their limits in more complex societal settings where individuals desire acceptance not based upon distinctions, but on their personal characteristics and the recognition that relationships contain similar emotions, values, obligations and aims to those found in heterosexual partnerships and families. Part One is going to show how we create sexual subjects in contemporary discourses about sexualities.

The second part will further the differentiation of the human rights subject and place sexual categorisation into a wider political framework that takes the public-private divide of liberal societies into account and relates gender to citizenship. Based upon this framework, the function of marriage and family in modern nations and the current “state of the arts” regarding the recognition of same-sex unions and families in European countries will be given. The core regional focus will be on European countries.6 These have been quite inventive in recent years in either opening the institution of marriage to same-sex couples, or introducing various forms of registered partnerships. Optimists are sure that this creative chaos of differing rules regarding partnerships and filiation will in the future lead to more - and on a European level more harmonious and equal - acceptance for same-sex couples and to the acceptance of sexual minorities. To date however, same-sex partnerships remain statistically insignificant while the legal hotchpotch challenges the citizens’ analytical digestion, hampers national public orders7 and creates disharmony between national and EU-citizenship status. Following the overview of national legal provisions, the third section focuses on same-sex family related provisions in international human rights law. Apart from references to ECHR- case-law and developments within the European Union, special attention will be drawn to children’s rights and women’s sexual and reproductive rights. As sexuality, affection and reproduction do not form a “natural” entity but are determined by state regulation, the relation between reproduction, sexuality and parenthood deserves closer attention.

Finally, this work will question the ability of international human rights law to effectively take same-sex families into account, as long the paradigm is heteronormative. Two paths that might help to redefine the human rights subject in order to overcome the homo-hetero border will be introduced. The first is the construction of a legal universal sexual subject based upon the perception that sexual One of the motivations for the topic of this thesis has been to deal with a human rights issue that concerns Europe itself and self-critically examines our own matters of course instead of pointing to violations in other regions. It seems pretentious to apply Western conceptions of sexuality to all societies, nonetheless, references to other cultures will be made at times in order to gain a different rights are basic human rights and the subsequent assumption that everyone has a sexual identity and the right to enter and form relationships according to this identity. The second suggestion will be a more gendered approach to the public-private divide of societies as such. The public-private divide, will be replaced by a three-layer-model, which suggests distinctions between the public state, civil society and the family. Along with gendered perspectives on citizenship it will be suggested that all individuals have duties within all three spheres. The success of such an approach can already be found in Scandinavian countries. Suggesting that if states and the human rights community live up to their human rights obligations regarding women, children, economic, social and cultural rights as well as the equal recognition of the private sphere as field of politics, then they would provide a more level playing-field for same-sex families. The aim of this approach is not so much to re-emphasise the “equality paradigm” that aims at valuing women “equal to men.” The aim is overcoming the equality paradigm in order to enable women, in this case lesbian women, to live independent from men, as citizens, workers and parents.

Following the assumption that same-sex families are not simply a minority issue but a fundamental cross-sectional topic that raises essential questions for universal human rights discourses and their heteronormative legitimacy, the approaches to the topic have been manifold. Feminist anthropology, political and philosophical perspectives on gender and queer theories have originally inspired the topic. This work recognises that “rainbow families” include a spectrum of same-sex/transgender parents and sexual orientation is not relevant to parenting. As such, lesbian and gay existences, irrespective of the formation of coherent social groups, cannot be viewed within the standard framework. Contrary to (male) theorists who seek to liberate sexual minorities from being the tail of feminism, it seeks to emphasise that the prevailing invisibility of lesbians and conditions that support this indivisibility, result from the very male-female divide along public-private lines and subsuming of lesbians into “the homosexual” subject. Feminist and lesbian-queer perspectives are essential for the human rights discourse to eventually recognise that invisibility of discrimination against lesbians is one of its severe forms.

Lesbian/ feminist theory has developed powerful critiques of heterosexuality, marriage and the family, in contrast to US-led “equal-rights”-approaches to political change, which seek to integrate lesbians and gays into normative social institutions and practices. This work will “ride on both trains” and yet remain on neither of them. The hetero-normative institutionalisation of societal relations within liberal nation states is highly criticised, especially among lesbian writers and theorists who are aware of their inherent double discrimination as lesbians and as women. Self-evidently, though, the solution is not the complete rejection of relationships, which have been the very motive for the whole struggle. While, from feminist perspectives and especially for lesbians, it is not particularly desirable to demand inclusion into a patriarchal hierarchical institution like civic marriage, which assigns women a maternal role, a complete negation of their potential through rejection of the current form will not solve the system’s insufficiencies. When the “right to say no”, a major fighting slogan in the 1970s feminist movements for the right to sexual self-determination and freedom from female suppression in marriage and motherhood, is transformed into the “duty” to forego public recognition of relationships and ultimately the freedom of sexual self- determination, including the possibility of becoming a parent, then something is still quite wrong. In the same sense that there must be a “right to say no”, there needs to be a “right to say yes” - “yes” to emotional-affective and sexual relationships whose public recognition has major implications in economic, political and social spheres of life; and “yes” to parenthood if wanted. Bearing children is a fundamental capacity of women, irrespective of their sexual orientation and yet part of their sexuality. If lesbian existence is tolerated by states only at the price of sacrificing motherhood - and if lesbians themselves adopt this perspective as essential part of their “liberation,” it will eventually turn into a new form of socialised self-mutilation.

2 Subject-creation: sex, gender and embodiment “What kind of subject do we have to become to be rewarded with rights?”

There are no subjects standing at the gate of the rights discourse waiting to be given entrance. The subjects themselves are only constituted within the gates of the rights discourse after their shapes have been formed and made adaptable. This means that in order to gain entry and claim rights, potential subjects need to relate to something already significantly acknowledged. Otherwise they would not be determinable. The primary rights subject has been the white, wealthy, heterosexual man. He was considered to be rational, autonomous and within the rights discourse a de-bodied, abstract individual.8 9

Not every construction of “homosexuality” is fit to serve the various spheres of rights discourse, if indeed any are at all. Constructions of homosexuality need continuous reflection in order to stay aware of the fixation of identities and modes of inclusion and exclusion.10 And apart from the assumed existence of a class of “homosexuals,” the presumption of a determined homogenous class of heterosexuals must be taken into account in order to distinguish the former from the latter and to form the former in the first place. For the rights practice this means that the hope of de-stigmatising and naturalising homosexuality by giving “equal” rights to homosexuals on the basis of their “sexual orientation” and potential status as “sexual minorities” conceals the fact that homosexuality serves to establish heterosexuality as the prevailing moral order. Therefore, a rights discourse that demands inclusion and equal access to already existing rights reaffirms the normality of institutionalised heterosexuality as the natural condition of the majority without question. Further, the main emphasis for the legitimation of rights for “homosexuals” as equal subjects relies solely on one single characteristic of their entire existence, sexual orientation, without taking into account wider social structures and relations of inequality. Sexual orientation denotes one’s sexual and emotional attraction to people of the same “gender.” In this context, “gender” refers to biological sex rather than taking “gender identity” in its entirety into account. Otherwise, we would not speak about homo sexuals and sexualities would not be such a big matter for discussion.11 The incoherent and contradictory use of Wintersieg, Nadine, Identitätspolitik als Körperpolitik. Körper und Identitäten in der feministischen Theorie, www.gretchenverlag.de/1-00/identitätspol.html, (19.06.04).

terminologies within this field is an additional problem. Nonetheless, sexual orientation, the meaning of which extends far beyond sexual acts, plays only a marginal role in many fields of life. In itself, it neither limits one’s physical and mental capabilities, workforce, interests or social relations. Yet, it does impact all these spheres indirectly, as human beings are social beings and within every sphere lesbians and gays, when speaking openly about their relations, undergo the process of being “othered” and stigmatised.

2.1 “ Homosexuals ” and the essential construction of “ lesbigays ”

Four attitudes towards homosexuality can be distinguished along the axis of whether homosexuality is seen either as behaviour or as part of identity and the concomitant social reaction. Often these attitudes mix and necessarily form a basis for discussing homosexuality. Significantly, homosexuality has long and predominantly been defined as a male category.12 The Christian religious conception of homosexual acts as “sin” prevailed in Europe and in US before the late 19th century. It did not distinguish between same-sex activity and other forms of sin, as all sexual relationships outside marriage were considered sinful. Homosexuality was not viewed as intrinsic part of identity.13 When medicine and modern science replaced religion as the major influence in society in the late 19th century, the emergence of homosexuality as an “illness”, a pathological disorder, came into existence. Albeit a potentially curable societal component, the homosexual became a distinct sexual, social and cultural identity, subjected to psychological and medical experimentation. The evolving sciencia sexualis established a system of scientific analysis that evaluated sexuality according to its productivity and its capacity for strategic integration in terms of creating kinship ties as means for the transmission of names and possessions. The result was the establishment of heterosexuality as “normal” and desirable behaviour and the creation of the (male) homosexual as a deviate species.14 “Findings” in medical and sexual sciences were, far from being explorative, heavily influenced by moral norms and values15 and states powerfully interfered into the sphere of sexuality through sodomy laws and the moral and financial manifestations of marriage and family.

As the 1960s and 70s faced social and economic changes after race ideologies, wars and colonialisation, the influence of family units on morality and law decreased in the wake of burgeoning individualism and economic growth. The feminist movement evolved and, gays and lesbians started to claim the once pathological identification of “homosexuals” or “gays” as group identity. Gay and lesbian liberation accompanied and contributed from women’s attack on traditional gender roles, increased openness about sexuality and the protest culture. A “neutral difference” was proclaimed, meaning that sexual orientation became an “essential” part of the individual’s identity, yet a difference that should not serve as basis for discriminatory treatment. This marked the basis for struggles for equal rights within legal systems. Lesbian women entered the public sphere as a distinct group but soon many became critical of the essentialist perception of sexual orientation, as it left unmentioned the inferior status of lesbian women as women in society, as well as the great social differences within the seemingly homogenous group of “homosexuals”, as even “the lesbian” was predominantly seen as stereotypically white, working, middle class, Western women.

More recently, therefore, sexuality has become to be seen as merely a “social construct”. Homosexuality as a distinct category was rejected. Categorisation of individuals was considered a product of cultural conventions rather than an immutable and essential part of identity and its universal claim was discarded.16 Instead of politicising identities or minorities within an unjust system, the very foundations of this

system, its social practices and contexts, were to be questioned. This could only be done when people overcame thinking in the system’s categories, focusing instead on practices of and motives for inclusion and exclusion. Instead of simply claiming equal rights, the heteronormative order that governs sexual relations was to be questioned. This constructionist approach is connected to the evolvement of gender studies and queer theory.17

The two last positions on homosexuality have become grounds for controversial debates through the present day. The essentialist stance builds upon fixed identities and immutable characteristics that determine the individual. It presumes that biological and physiological influences precede and set limits to cultural ones.18 Implicitly, essentialist stances claim universality as they take for granted that all societies consist of “men” and “women”, “heterosexuals” and “homosexuals” (or sometimes bisexuals) as distinct entities. Accordingly, men and women are fixed biological entities and the desire for a person of the same sex is something biological and unchangeable - a slight variation in nature.19 Essentialist perspectives see sexual orientation as an end in itself, not interfering further with sex20, sexual power relations, and gender identity.21 By doing so, they leave out differences within the category. The equality approach assumes gender- neutral individuals as rights subjects. Thus women’s definition in relation to men is not considered and other impacts on identity, such as race, ethnicity, social status, nationality and forms of desire, are also unexamined. This leads to a rather male oriented perception of sexualities.

Constructionism questions fixed sexuality and even sex as predetermined biological entity itself.22 Masculinity and femininity are not taken for granted but perceived as constructed distinct poles that solely exist in relation to one another. Gender and sex become discursive categories that do not offer a material, static or structural account of material causes for their construction. Subsequently, if it is not possible to establish independent male and female subjects, the establishment of distinct female and male homosexual identities in relation to heterosexual ones is also unveiled as a predominantly discursive undertaking, as even for the individual being, woman or man, does not provide an ontological foundation. As the relationship of sexual acts to sexual identities and the construction of identities themselves are not historically fixed, but contingent and capable of cultural redefinition, (i.e. depending upon a cultural context), there cannot be any fixed categories of sexual orientation.23 Anthropological studies in the field of sexuality have strongly supported this perception by elucidating that notwithstanding a certain male-female reproduction polarity in every society, sexualities and gender systems show extreme differences, variations and alterations.24 Furthermore, “gender identity” does not only represent social gender roles detached from a physiological sex. Rather, gender identity entails the three components of sex, social gender role and lived or desired sexualities. The problem however, is that within specific systems, “intelligible gender identities” are only such that show a specific coherence and continuity between anatomical sex, gender and sexual practice - and in liberal societies that is only the conception of (monogamous) heterosexuality.25

Constructionist discourses on sexual identities point out that sexuality itself is a construction of modern Western sciences.26 “Sexuality” as specific field of scientific research only evolved in the late 18th century. And with the evolving of sexuality, the construction of bodies, belonging to two different sexes, wherein the phallus was considered the predominant organ for consideration and the uterus as its negative complement.27 Freud furthered this two-sex construction and the assignment of respective gender roles by declaring the vaginal orgasm as the sign of women’s civilisation. According to him, the vaginal orgasm was to replace the clitoral-orgasm for a mature woman and this was to mark the transformation to women’s reproductive sexuality.28 Sexuality became and represents a form of power and a discursive matrix, embodied in gender roles and identities, that needs continuous social and discursive repetition for its maintenance.29

2.2 Categorisation and the struggle for (equal) rights

“The term minority in the western world has clearly been coined to describe what they considered as lesser humans”30

Laws and rights constitute categorical linguistic systems wherein terms gain their meaning within contextual discourses. The primary human rights subject, the white Christian working male, came into being as the dominant norm in relation to other non- male, non-white, non-Christian individuals. Consequently, in order to assure that all these others should not be discriminated against, categories31 of religion, race, sex, social status, and so forth came into existence in order to underline their claim to equal rights. Categorisation within the human rights system is thus in itself first a negative process to overcome its inherent shortcomings. It relies on “othering,” emphasising a distinction that is not supposed to be a ground for discrimination and yet marks its basis. Categories inscribe groups with a characteristic which regulates, contains, constitutes and victimises them, as the alleged difference, once manifested, seems an inherent characteristic outside the control of the individual and not alterable by conscious action.32 The possibility of individual control over the meaning of a characteristic is denied by virtue of the reliance upon immutability. In the opposite manner, states control their citizens by dividing them into distinct groups. A categorical human rights approach, to the extent that it emphasizes the historical continuity of immutable categories, is a constraining interpretation if not a prescription for individual and collective identity. It requires individuals to identify themselves along an axis of oppression for any particular purpose and to fit themselves within one grouping, often as minority that can be labelled as “disadvantaged.”33 This leaves little room to articulate a more radical claim about the ideological basis of the categories and the process of categorisation.34 Social existences are geographically and historically transient, yet they become “fixed” within statist political and legal systems in order to be identified. Overall, the “alphabet soup of categories” produced in globalised human rights discourses on sexual and other identities, intended to produce a language of plurality, erases that very plurality at the moment of its avowal, as its potential to grasp reality is very limited.35

What mono-dimensional categorical approaches to human beings also conceal is that the mechanisms for discrimination on different grounds are identical and interrelated. Underlying grounds for racisms differ little, if at all, from motives for discrimination against religious, national or sexual minorities. They focus on claims of privileges, rights and goods. Mechanisms and structures for the discrimination of (homo)sexual relations are thus grounded in more than the rejection of one’s sexual orientation.36

3 Subject differentiation - liberal societies

Irigaray has stated that sexual difference is the question of our time. Its privilegation is not only based upon the fact that the sexual difference and sexuality as such are perceived as essential to human life, it is also based upon the fact that other distinctions can be derived from this differentiation.37 International human rights law supports this perception. It is built upon the male subject as citizen and bread-winning head of “the family”, and distinguishes the woman, predominantly in her role as wife and mother. Other categories, especially sexual orientation, would not even exist if not in relation to the sexual dichotomy and its underlying heterosexual paradigm. Perceiving sexual difference as essential means that it symbolizes an autonomous sphere of relationships and distinctions, free from power relations and other influences. Philosophy, social sciences, law discourses and common sense have long demonstrated that this is not the case. Even biological sex is, in the end, nothing but a position, a construct that has been forcefully materialised and “naturalised” by steady repetition of norms and discursive practices within a culture-specific heterosexual matrix,38 practices which produce and distribute power.39 The need for repetition within respective socialisation processes for the maintenance of a social system elucidates that the materialisation of differences is never fully complete and that bodies never completely dispose themselves within the norms.

The essentialist approach to sex and gender assumes unalterable biological differences. The political project was to distinguish sex from gender and to erode the social construction of gendered identities. The ambition was the acceptance of sexual difference while realising gender androgyny. If the link between sex and gender is eroded in this way, sex loses its politically pertinence and men and women should be expected to participate equally within the public realm.40 However, the gender system, which constructs two different sexes, is a system that works to concentrate power in the hands of men who thereby control younger men and women. In this context, the family is the significant site of power and heterosexuality the central institution that perpetuates the gender system. Only within this frame can women be viewed as distinct class.41 It has, however, long been acknowledged that gender is by no means the only category for the establishment of differences between individuals and that even the gendered identity is not only framed within and for the family.42 Both, the human rights system, and modern nation states, for which they have been created, have their foundation in liberalism.

3.1 Public and private - social and sexual

The distinction between “public” and “private” in liberal theory and its reflection, the almost exclusive focus on “the public” within human rights discourses, have served to obscure many of the abuses perpetrated against women, particularly those that take place in the home and family. Women have typically been assigned a dual function

Sex Sexuality in “ Tahiti and Her Islands ” , in Evelyn Blackwood, Saskia Wieringa, 1999, pp. 230-255; Tietmeyer, Elisabeth, Frauen heiraten Frauen. Studien zur Gynaegamie in Africa, Hohenschäftlarn, Klaus Renner Verlag, 1985.

within society. One is their role as symbolic bearers of the nation’s future and the other is as boundary marker in terms of racial or national purity in differentiating its members of the group from the “other.” As women are used to maintain and reproduce group identity, they and their sexuality are particular targets for control and regulation.43 In the name of protecting women, and thus the interests of individual communities, the line between protection and control over the female body is often trespassed. Governments, parliaments and judiciaries have ‘privatised’ women, especially in their role as wives, through legislation in the fields of family, education and employment. Women were made dependent on their husbands and forced into their ‘natural capacities’ for patrilineal reproduction. In this way, legal rules produced and reinforced a division of humankind according to select criteria in various categories, among which sex was predominant,44 and liberalism’s social contract, which creates civil society and the state, eventually relied upon a sexual contract to accommodate the patriarchal system. In this sense, liberalism represents the reorganisation, but not the abolition, of patriarchy as it was relocated into the private domain and reformulated as a complement to civil society. Classical liberal theory assumed the male-headed family to be an independent “natural, biologically determined unit.” And as politics was assumed to apply only to that what was socially constituted and amenable to change, relations within the family were deemed apolitical.45

As this entire construction of society was far from being a naturally determined, institutions of reproduction and socialisation are needed to shape individuals into this mould. Liberalists have rarely paid much attention to how liberalism reproduces its subjects, claiming that states should not intervene with the private sphere. In practice, though, since the beginning of modern nationhood, states have imposed and enforced

strong moral and social institutionalised codes for the upbringing and streamlining of future citizens from early childhood. This practice has been not only contrary to the fundamental principles of liberalism, with its aim of perpetuating patriarchy; it has also pursued a profoundly illiberal end. The struggle for sexuality and its regulation is unalterably connected to the genesis and reproduction of modern social institutions such as family, state, individual liberty, censorship, public and private life, modern gender differences, census, national identity or cultural concepts of the body. From a queer perspective gender and sexuality are constructed effects of certain modern processes of regulation, signification and standardisation.46

Because liberalism works with a conception of the subject as an autonomous agent - equal, unattached, rational male individuals as actors within the public sphere - liberals have generally neglected the family’s role in structuring both public and private life. This manufacture, opposing the autonomous male subject with the subsequently dependent, and thereby inequal female, herself not long considered a political subject at all, conceals the fact that the foundation of this liberal perception of society is a prescriptive rather than descriptive construction for society. Analogous to civil society, family actually constitutes a third sphere between the state public sphere and the personal private sphere. In opposition to the state it is seen as private, and in opposition to individual private relations, it is seen as a social public matter.47 The personal and civil society are essential to the realisation of individual freedom. It has often been stated, that international human rights law can meaningfully address violations of women’s human rights only if economic, social, and cultural rights are placed on par with civil and political rights.48 The unequal treatment of men and women under international human rights law carries consequences for sexual minorities, and especially for lesbians who maintain a weaker position within society. Gays and lesbians do not fit the gender stereotypes. Accordingly, their relations do not fit into public-private complementarity along society’s prescribed sexual lines. Gay and lesbian human rights movements, taking an essentialist stance, have mainly fought for equal civil and political rights and inclusion into existing institutions, such as marriage and the military, without considering their original unequal foundations.49 In a way this was an inevitable compromise, as demands for legal recognition necessitate the imitation of prototype subjects in order to achieve recognition,50 but paradoxes about how to resolve the strive for equal rights within unequal institutions remain unresolved. Critical reflections remain necessary to ensure that the desire to assimilate and integrate does not become a form of collective self-mutilation.

3.2 Marriage and Family

"In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State.”51

“Family” is a social and legal construct, privileged within society. Family is not simply a private issue, but also a public and a political one. It affects not only personal relations and the right to experience them without state interference but also influences the individual’s status as citizens within a liberal-democratic society. Several international and regional human rights treaties offer protection to the family, but most of the monitoring bodies created by these instruments have provided little analysis as to what “family” actually means,52 apart from the fact that “the family” that is safeguarded under human rights treaties has been consistently defined heterosexually. Moreover, wherever the issue of recognition for gay families is raised, such as in applications to the monitoring bodies of the European Convention of Human Rights, tribunals have been reluctant to interfere with domestic laws or practice with respect to recognition of same- sex partnerships and families.53 It appears that same-sex families are not fully taken into account in the social contact as they do not conform to the presupposed sexual contract.

[...]


1 Blasius, Markus, An Ethos of Lesbian and Gay existence, in Markus Blasisus (ed.), Sexual Identities. Queer Politics, Princeton University Press, pp. 143-178.

2 Fritsche, Tina, Ich hasse Engstirnigkeit. Interview with Anne Holt, in “L-MAG”, Summer 2004, www.l-mag.de, (01.07.04).

3 Bulletin-EC, 6-1993, cited from Swiebel, Joke, Gay and Lesbian Rights and EU Enlargement, in “Gay Rights: a New Orientation for Europe?”, eumap feature, http://www.eumap.org/articles/content/60/604/index.htm (14.04.04).

4 Universal Declaration of Human Rights (UDHR), adopted and proclaimed by United Nations General Assembly Resolution 271 A (III) of 10 December 1948, Preamble, first paragraph.

5 UDHR, Article 1: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” UDHR, Article 7: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”

6 One of the motivations for the topic of this thesis has been to deal with a human rights issue that concerns Europe itself and self-critically examines our own matters of course instead of pointing to violations in other regions. It seems pretentious to apply Western conceptions of sexuality to all societies, nonetheless, references to other cultures will be made at times in order to gain a different perspective on matters that may seem natural and universal to us.

7 Legal same-sex unions that have been concluded in EU Member States, e.g. Belgium, are not accepted in other Member States whose conception of family and marriage does not include same-sex unions as, for instance, Portugal. With reference to the public order clause, states like Portugal can deny same-sex partners recognition as married couple - as such a marriage is not included in Portuguese law - and they can also deny them the right to family reunion. For details see EU Network of Independent Experts on Fundamental Rights, CFR-CDF.avis2-2003 of 30 June 2003 and CRF-CDF.avis2-2002 of 30 November 2002.

8 Smith, Anna Marie, Wider die depolitisierenden Effekte des liberaldemokratischen Pluralismus: Die Rechte von Lesben und Schwulen jenseits der ‚ single-issue’ -Politik, in Quaestio (eds.), Queering Demokratie. Sexuelle Politiken, Berlin, Quer Verlag, 2000, pp. 45-63. The translation is my own.

9 Wintersieg, Nadine, Identitätspolitik als Körperpolitik. Körper und Identitäten in der feministischen Theorie, www.gretchenverlag.de/1-00/identitätspol.html, (19.06.04).

10 Hark, Sabine, Durchquerung des Rechts. Paradoxien einer Politik der Rechte, in Questio (eds.), Queering Demokratie. Sexuelle Politiken, Berlin, Quer Verlag, 2000, pp. 28-45, pp. 39-40. Family sociology proves that “the traditional family”, consisting of the married bread- winning father and a housewife (or less-earning) mother with two children, has

10 Hark, Sabine, Durchquerung des Rechts. Paradoxien einer Politik der Rechte, in Questio (eds.), Queering Demokratie. Sexuelle Politiken, Berlin, Quer Verlag, 2000, pp. 28-45, pp. 39-40.

11 “Sexual orientation” refers to a person’s sexual and emotional attraction to people of the same gender, another gender or both genders. Gender identity” is linked to an individual’s intrinsic sense of self and, particularly, the sense of being male or female. It may or may not conform to a person’s sex at

12 Editors of the Harvard Law Review, Sexual Orientation And The Law, Cambridge, Mass, Harvard University Press, 1996, Fourth edition, p. 2.

13 This conception is still mirrored in Christian contexts which idealise the heterosexual married couple. An empirical study, conducted in 2001 in the countries then comprising the European Union clearly suggests that belief in Christian values (in god, “sin” and religious service as important part of a

marriage ceremony) still correlates with the rejection of homosexuality. Halman, Loek, The European Values Study: A Third Wave. Source book of the 1999/2000 European Values Study Suvreys, Tilburg, WORC, Tilburg University, 2001, cited in Waaldijk, Kees, Taking same-sex partnerships seriously. European experiences as British perspectives. Fifth Stonewall Lecture, March 2002, pp.1-25, www.emmeijers.nl/waaldijk, (02.07.04), p. 6.

14 Foucault, Michel, The Will To Knowledge. The History of Sexuality: Volume One, Reprinted under this title in London, Penguin, 1998, pp. 105-106.

15 Foucault criticised the practice of dividing sciences of biology (reproduction) and medicine (sex) from the 19th century on. Biology developed under general scientific normativity, medicine ‘developed’ along power relations and morals. “Whereas the one would partake of that immense will to knowledge

[…] the other would derive from a stubborn will to nonknowledge.” Ibidem, pp. 54-55.

16 Corvino, John F, How Not To Argue For Gay Rights, in Juha Räikkä (ed.), Do We Need Minority Rights?: Conceptual Issues, The Hague, Martinus Nijhoff Publishers, 1996, pp. 215-235.

17 “Queer theory” and queer politics evolved in the late 1980s from gay and lesbian politics. “Queer” was used as invective for homosexuals before it was appropriated by the gay community as fight slogan for their rights. On a scientific level, queer theories de-naturalise (hetero)sexuality. Queer theory reveals how heterosexuality is based upon constructed norms. This “heteronormativity” is inscribed into societies where it unfolds its power as assumed normal reality. Queer theory breaks up the ideal picture and discloses the neglected heterosexual dimension of power and the establishment of heterosexuality through power politics. On a political level, “queer activism” questions social movements, which are based upon definition and classification of homogenous group identities for collective action. Minorities are such groups. Quaestio, Sexuelle Politiken. Politische Rechte und gesellschaftliche Teilhabe, in Quaestio (eds.), Queering Demokratie. Sexuelle Praktiken, Berlin, Quer Verlag, 2000, pp. 9-28, pp. 12-14.

18 Wekker, Gloria, ’ What ’ s Identity Got to Do with It? ’ . Rethinking Identity in Light of the Mati Work in Suriname, in Evelyn Blackwood, Saskia E. Wieringa (eds.), Female Desires. Same-Sex Relations and Transgender Practices across Cultures, New York, Columbia University Press, 1999, pp. 119-139.

19 Epstein, Stephen, Gay politics, ethnic identity: the limits of social constructionism, in Edward Stein (ed.), Forms of Desire: Sexual Orientation and the Social Constructionist Controversy, New York, Routledge, 1992, pp. 239-295, p. 239.

21 “Sex” refers to “the biological characteristics [such as genes, chromosomes, organs], which define humans as female or male”, WHO working definitions, www.who.int/reproductive- health/gender/sexual_health.html, (10.06.2004).

20“Gender identity” is linked to an individual’s intrinsic sense of self and particularly, the sense of being male or female. It may or may not conform to a person’s sex at birth. no author, Sexual orientation. It ’ s about non-discrimination, in “Human Rights Features”, April 2003, www.hrdc.net/sahrdc/hrfchr59/Issue6/sexual_orientation.htm, (12.02.04).

22 Butler, Judith, Das Unbehagen der Geschlechter, Frankfurt a. M., Suhrkamp 1991, p. 34. Butler, Judith, Körper von Gewicht. Die diskursiven Grenzen des Geschlechts, Frankfurt a. M., Suhrkamp 1997, pp. 32-33.

23 Stychin, Carl F., Essential Rights and Contested Identities: Sexual Orientation and Equality Rights Jurisprudence in Canada, in Conor Gearty, Adam Tomkins, Understanding Human Rights, London, Pinter 1999, pp. 218-233, p. 223.

24 E.g. Schein, Gertrlinde; Strasser, Sabine (eds.), Intersexions. Feministische Anthropologie zu Geschlecht, Kultur und Sexualität, Wien, Milena, 1997; and Roscoe, Will; Murray, Stephen, Introduction to Islamic Homosexualities, in Will Roscoe, Stephen Murray (eds.), Islamic Homosexualities. Culture, History and Literature, New York/ London, New York University Press, 1997, pp. 3-107.

25 Butler, Körper von Gewicht. Die diskursiven Grenzen des Geschlechts, p. 55.

26 Buddhist and Hindu traditions for instance, do not make a distinction between homosexuality and heterosexuality. Rather marriage is considered a union of two souls. Knowing this it is not surprising, that, for instance, the Cambodian King, reacting to US-President Bush’s condemnation of same-sex

marriages in February 2004, supported legal recognition of same-sex marriages. In India, several cases of Buddhist women marriage ceremonies have been documented in recent years, many of which were declared invalid by the government. Cambodian King backs gay marriage, BBC News, 20. February 2004, www.news.bbc.co.uk/2/hi/asia-pacific/3505915.stm, (02.07.04) and Narrain, Arvind, Human Rights and Sexual Minorities: Global and Local Contexts, in “Law, social Justice & Global Development Journal” (LGD), vol. 2, 2001, http://www.elj.warwick.ac.uk/global issue 2001- 2/narrain.html, (13.03.04).

27 Laquer, Thomas, Auf den Leib geschrieben. Die Inszenierung der Geschlechter von der Antike bis Freud, Frankfurt, Campus, 1992, pp. 39-41. Before, it was held that there is only one body, one “sex“ with different forms - organs either visible or hidden in the body.

28 Freud’s theory, as absurd as it is scientifically, helps in understanding why female sexuality and lesbian motherhood are perceived to such an extent as a non-issue. The claim for sexual fulfilment and the rejection of male dependant “vaginal orgasms” do not seem compatible with reproduction. Further, it can be understood that sexuality in general became to be perceived as a right for men and a duty for women. Freud knew that his theory could not be proven by any physical and anatomical evidence but was based on cultural morals. Wintersieg, Nadine, Identitätspolitik als Körperpolitik. Körper und Identitäten in der feministischen Theorie, www.gretchenverlag.de/1-00/identitätspol.html, (19.06.04). Nonetheless, sexual intercourse has been manifested as a conjugal duty for women throughout Europe and women were assigned the passive role.

29 Villa, Paula-Irene, Sexy Bodies. Eine soziologische Reise durch den Geschlechtskörper, 2nd edition, Opladen, Leske+Budrich, 2001, p. 139.

30 Maalim, Farah, Constitutionalization of the Rights of Minorities & Marginalized Groups, in Constitution of the Kenya Review Commission, Nairobi, 15.09.01, www.kenyaconsitution.org/docs/09dd001.htm, (05.07.04).

31 Two characteristics distinguish the categories properly recognised under non-discrimination provisions. The first is that unequal treatment must be individuous, i.e. those who merit equal treatment are treated unequally. Secondly, unequal treatment must be systematic, i.e. repeated with frequency and reflecting political or social hostility towards a group. Heinze, Eric, Sexual Orientation: A Human Right, Dordrecht, Martinus Nijhoff Publishers, 1995, pp. 225-229.

32 Stychin, 1999, 224.

33 Ibidem, p. 222.

34 Ibidem, p. 227.

35 Telli, Ashley, Ways of Becoming, April 2003, http://www.india-seminar.com/2003/524/524%20ashley %20tellis.htm, (01.07.04).

36 The interrelations between structures of suppression based upon heterosexism, racism, anti-Semitism, etc., have rarely been investigated, as we are so entangled in these structural complexities. It remains difficult to transform consciousness of their existence into practice as this would go along with giving

up fundamental societal privileges. Janz, Ulrike, “ Keine von uns? Vom schwierigen Umgang mit ‚ zwiespältigen Ahninnen ’, in “IHRSINN. Eine radikalfeministische Lesbenzeitschrift ”, vol. 2, no. 3, 1991, pp. 24-39, and Hauer, Gudrun, Lesben und Nationalsozialismus: Blinde Flecken in der

Faschismustheoriediskussion, in “lambdanachrichten”, June 2001, pp. 46-52, p. 52.

37 Irigaray, Luce, Ethik der sexuellen Differenz, Frankfurt a.M., Suhrkamp 1991, p. 11.

38 Butler, Das Unbehagen der Geschlechter, p. 17. Other societies all over the world have been more flexible. Not only did and do various societies recognise “intersexuals” as such, they have also established more sophisticated gender systems to take identity variances and transgender practices into

account. Gender roles are, in many societies, not depending on the sex. Often cited in this context are e.g. native North American societies and their Berdache as well as the Hirjas in India, but reference can also be made to Mati women in Surinam, Mahu in Polynesia and various forms of gynaegamic relations in African societies. See e.g., Lang, Sabine, Lesbians, Women-Men, and Two-Spirits: Homosexuality and Gender in Native American cultures, in Evelyn Blackwood, Saskia E. Wieringa. (eds.), 1999, pp. 91-119; Elliston, Deborah A., Negotiating Transnational Sexual Economies. Female Mahu and Same-

39 Butler, Körper von Gewicht. Die diskursiven Grenzen des Geschlechts, p. 21.

40 Squires, Judith, Gender in Political Theory, Cambridge, Polity Press, 2000, p. 56.

41 As workers were thought to be oppressed by their relation to the mode of production, women were thought to be oppressed by their relation to the mode of reproduction - reproductive heterosexuality. Squires 2000, p 56, with reference to Gayle Rubin, The traffic in women. notes on the political

economy of sex, in Reiter, R. (ed.), Toward an Anthropology of Women, New York, Monthly Review Press 1975.

42 Squires, p. 58.

16

43 Pettman, Jan J., Worlding Women: A Feminist International Politics, London, Routledge, 1996, p. 48, cited in Tan beng hui, Women ’ s Sexuality and the Discourse on Asian Values: Cross-Dressing in Malaysia, in Evelyn Blackwood, Saskia E. Wieringa (eds.), 1999, pp. 281-308, p. 283.

44 Pizarro Beleza, Teresa, Genderising Human Rights: From Equality to Women ’ s Law. EU/China Dialogue. Perspectives on Human Rights - With Special Reference to Women, in Merja Pentikäinen (ed.), Publication of the Northern Institute for Environmental and Minority Law, Rovaniemi, Lapland’s University Press, 2000, pp. 173-191. Analogous to seeing in the human being the crown of creation, and to seeing a definite biological distinction between male and female, it was seen as a sign of higher culture that women and men could socially be clearly distinguished, thus having women stay at home. Schröter, Susanne, FeMale. Ü ber Grenzverläufe zwischen den Geschlechtern, Frankfurt a. M., Fischer, 2002, p. 86.

45 Pateman, Carole, The Sexual Contract, Cambridge, Polity Press 1988, p 90, cited from Squires, pp. 28- 29.

46 Quaestio, Sexuelle Politiken, Politische Rechte und gesellschaftliche Teilhabe, in Questio (eds.), Queering Demokratie. Sexuelle Politiken, Berlin, Quer Verlag, 2000, pp. 9-28, p. 13.

47 Kymlincka, Will, Contemporary Political Philosophy: an introduction, Oxford, Oxford University Press, 1990, cited in Squires, pp. 25-26. The social/personal distinction in liberal societies is again influenced by Romanticisms.

48 Rosenbloom, Rachel, Introduction, in Rachel Rosenblom (ed.), Unspoken Rules. Sexual Orientation and Women ’ s Human Rights, London, Cassell 1996, pp. ix-xxix, p. xiii.

18

49 Phelan, Shane, Verwandtschaft und Staatsb ü rgerinnenschaft. Neue Einschl ü sse, Neue Ränder, in, Quaestio (Eds), Queering Demokratie. Sexuelle Politiken, Berlin, Quer Verlag 2000, pp. 130-143, p.131.

50 Smith, p. 48.

Marshall CJ, 18 November 2003, cited from BBC News (eds.), Homosexuality and Marriage, in

“ Religion & Ethics ” , http://www.bbc.co.uk/religion/ethics/samesexmarriage/, (01.06.04).

52 Hodson, Loveday, Family Values: The recognition of same-sex relationships in international law, in “Netherlands Quarterly of Human Rights”, vol. 22, no. 1, March 2004, pp. 33-59, p. 34.

53 Ibidem, p. 35.

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86
Year
2004
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English
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University of Lisbon – Faculty of Law Ius Gentium, University of Coimbra
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Menschenrechte human rights same-sex families gender homosexualität regenbogenfamilie recht politik

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Title: Sexy Families for Sexy Citizens?