{03}Beyond Visibility, Rights, and Citizenship

Critical Notes on Sexual Politics in the European Union

Christian Klesse

The accession of ten new member states has opened up new political and discursive spaces for challenging homo-, bi-, and transphobia in the new member states and the European Union (EU) as a whole[1]. There has been widely felt sense of hope that the accession will ultimately increase the possibilities of political action, result in democratisation, and better the political conditions for sexual minorities to fight discrimination and struggle for equal treatment before the law (ILGA Europe 2001, Vadstrup 2002, Pereira 2002, Neumann 2004, ILGA 2004, Stonewall 2004). Such sentiments were also expressed in the call-for-papers for the Conference ‘Europe without Homophobia. Queer-in(g) Communities’ that took place from May 24 to May 26, 2004 at Wroclaw in Poland, for which I wrote the first draft of this paper. Participants were asked to reflect upon ‘how we can contribute to making sexual minorities in the European Community visible, heard, safe, and equal before the law’ and to ‘investigate the practical ways (including legal actions, information campaigns, political participation, etc.) of achieving the bold vision suggested in the title: Europe without homophobia’ (Organizing Committee 2004). Human rights groups and lesbian and gay organisations both in the (prospective) new and the already existing member states sensed that access to funding by EU bodies and the ability to address political and/or legal institutions of the EU (and/or the Council of Europe) opened up ‘new space’ for political activism and enabled access to a new range of political discourses and strategies (cf. Stychin 2003). Already many years before accession, human rights organisations and lesbian and gay campaigning groups started to utilise the transformative potential of this prospective economic-political and socio-legal change for campaigns against human rights abuse and legal discrimination on the grounds of gender and sexuality in states applying for accession. ILGA Europe, for example, emphasised that accession should be made dependent on the applying states complying to the high human rights standard that the EU is supposed to stand for[2]. Due to the uneven power structure between the institutions of the EU and the states applying for membership, the logic and rhetoric of ‘enlargement’ structured the negotiations about accession. The power imbalances at the heart of the process are further indicated by the fact that accession is frequently discussed in the scientific literature in the terminology of ‘Europeanization’ (cf. Schimmelfenning and Sedelmeier 2005a). In this context, ‘Europeanization’ signifies ‘integration’ into the economic organisations and politico-legal institutions of the EU, a process that, according to Schimmelfenning and Sedelmeier, can be characterised as ‘a massive export of EU rules’ (2005b: 221). Because accession has been such a recent moment in history, research on the effects of the EU enlargement on the national polities of the new or prospective member states is still scarce. In particular, sexual politics has remained an under-researched topic (for an exception, see Stychin 2003). However, there is sufficient reason to speculate that accession will significantly affect the discourses and strategies of social movements struggling around sexuality and gender in the new member states. Even if it cannot be predicted at this stage, how political actors and social movements will respond and position themselves with regard to these newly emerging ‘political opportunity structures’ (Kriesi et al. 1995), the evolving institutional, economic, and discursive context will without any doubt impact on their politics.

Acknowledging the potential significance of the process of accession for the future formulation of sexual politics, I find it worthwhile to reflect upon the major political strategies of the gay, lesbian, bisexual and transgender movements in the countries that have worked within the legal-political and discursive frame provided by the EU for a much longer period of time. I will thereby primarily draw on examples from the United Kingdom (UK), where I have lived and undertaken research on lesbian, gay male, and bisexual social movement politics for many years. Law reform has always been a prominent strategy of social movements campaigning for justice around the social divisions of gender and sexuality. They have thereby usually relied on two tactics: (a) lobbying state and national parliaments and (b) bringing test cases to contest discriminatory government policies or to review the validity of existing laws

(Bamforth 1997: 23). In this article, I raise some critical questions regarding the centrality of a politics of legal reform through a strategy of litigation. Since accession has frequently been equated with democratisation in political discourse, I argue that a lack of democracy continues to shape the political terrain of the EU. This problem limits the potential for political change by the means of social movement activism that directly addresses EU institutions. I then go on to discuss in more detail the ways through which social movements have used strategies of European litigation for achieving legal reform. European litigation seemed to provide a promising strategy in particular for social movement groups campaigning in countries (such as the UK) that have been highly reluctant to take up measures to put an end to legal and other forms of discrimination. Initially, litigation focused on domestic courts and the European Court of Human Rights (ECHR). However, over recent years, litigation at the European Court of Justice, too, has got more prominent (Beger 2000, Bell 2002: 108). In the final parts of the article I explore the political and philosophical assumptions that frequently underpin social movements’ appeal to anti-discrimination or human rights laws. I argue that attempts to gain public sphere inclusion through the demand for either equal rights with heterosexuals or the bestowal of full citizenship status are inherently limiting and may themselves enfold exclusive effects.

The European Union and the Problem of Democracy

In the social scientific literature, accession has frequently been discussed as an issue of ‘Europeanization’ (Schimmelfenning and Sedelmeier 2005a). Although the term ‘Europeanization’ is here primarily understood on the level of political ‘governance’, its connotations are subtle and manifold. They frequently include cultural and ethical meanings, too. Carl Stychin (1998) argues that despite its ‘supra-national’ character, Europe has produced its own nationalistic discourses that usually draw upon an identification with the traditions of Christianity and Enlightenment, an essentialised fusion of Europeanness with whiteness, and the claim to symbolise or ‘own’ the history of liberal democracy. EU nationalism has fed into a sense of superiority according to which ‘Europeanization’ can be read as a short-cut for ‘democratisation’ and the advancement of human rights. In order to challenge such forms of ‘eurocentric’ jingoism, I will briefly address some questions regarding the definition of democracy, the state of democracy in the EU, and the hegemonic forms of politics through which social movements have addressed the political and legal institutions of the EU.

Democracy is a contested concept and has not yet been sufficiently defined in social and political theory. Important unsettled questions evolve around the balance between participation and representation, and the relationship between liberty and equality, or majority rights and the rights of minorities. A further tension consists in the relationship between a concern with formal procedures and ethical values (Newman 2002). The EU has been criticised for its deficit of democracy throughout its history. Since 1979 only Members of the European Parliament (EP) have been elected. Members in all other important commissions have never been elected, but nominated by the governments of the member states. This is still the case with the European Council, the Council (of Ministers) and the Commission, the most important executive organs of the EU. Many observers have cautioned that the changes implied by the Maastricht Treaty 1992, the Amsterdam Treaty 1997, or envisioned in the Constitution, etc. cannot mask the consisting un-democratic character of EU institutions or policies (Peach 2004). Michael Newman (2002) identifies a lack of democracy on three major levels: Policy-making in the EU still consists in secretive intergovernmental bargaining, with a high degree of interpenetration between national and EU civil servants. Apart from that, the EP has still no say in vital policy areas, such as foreign policy, inner security and defence.

The lack of democracy in the EU is further revealed in the implementation of repressive measures against immigrants and asylum seekers, including joint police cooperation, enhanced surveillance, policing and data exchange, standardised visa policies, etc. Until Maastricht, all these measures were decided on an entirely informal intergovernmental level and up to May 2004 both the EP and the European Court of Justice were deprived of real means of intervention. Over recent years, the bargaining about a joint EU asylum politics has led to the restriction of the right for asylum in many EU countries and to the implementation of both a camp system and a regime of chain deportations (cf. Brah 1993, FFM 1997, Kofman et al. 2000, Kopp 2004, Dietrich 2004).

The construction of a single European Market has been guided by capitalist principles with the removal of barriers to competition as the major aim. The introduction of the European Monetary Union as the most significant step of integration since the formation of the EC has sidelined concerns about poverty and falling living standards in favour of the consideration of currency stability and international competitiveness (Peach 2004). Because the political project of the EU has been primarily driven by market considerations, EU citizenship has not put a very strong emphasis on the values of social justice and participatory democracy. Consequently, measures for the protection of individual rights and freedoms have always been primarily ideological in character. They have not been conceived in order to enhance individual (or collective) autonomy, but as a means of enforcing the obligation of the Community and the member states towards the achievement of the project of economic integration through the creation of neo-liberal market principles. For example, the ‘right of free movement’ – the centrepiece of EC citizenship – should in the first place enable the free movement of labour. It was framed as the right of economically active citizens of EU member states to seek employment in other member states of the EU. It was conceived around racist definitions of belonging, individualised employment relationships and, inasmuch it has been concerned with families, on implicitly heteronormative models of the couple relationship and the single breadwinner (Stychin 2003: 77-79, Everson 1995, Hervey 1995). Although there has been an attempt to construe European citizenship in more substantial terms since Maastricht, many commentators continue to complain about the priority of economic over social and political rights in the codification of EU citizenship as a result of this legacy (Kenner 2003, Stychin 1998, 2003). The themes of equality and non-discrimination have undeniably been attributed great significance in treaty provisions, secondary legislation and case law – most recently in the Charter of Fundamental Rights. At the same time, equality and non-discrimination have remained contested concepts and no single definition of the terms emerges from EU legislation and policy declaration. According to Mark Bell (2003), equality has been cast according to three major discourses: equality as non-discrimination, substantive equality, and equality as diversity. Provisions and regulations are manifold, complex, uneven and frequently contradictory. In particular inasmuch sexuality is concerned EU legislators have been reluctant to commit themselves to an unequivocal endorsement of far-reaching equality protections (Bell 1998, 2002, 2003). As said above, the debate about equality has further been subordinated to or mediated by economic market rationalities, which has effectively hampered the process of implementing practical measures for safeguarding equality (Stychin 1998: 123). The narrow and exclusive definition of EU citizenship and the economic bias of EU equality discourses have demarcated the terrain for social movements that wanted to address EU institutions in their campaigns around sexuality and gender. This conditionality has thereby had a thorough impact on the political rhetoric and strategies of these movements.

Sexual Politics in Europe and the European Union

In the face of an obvious lack of democracy, a prioritisation of economic rationalities in the formulation of policies, a reductionist conceptualisation of EU citizenship and an ethnocentric definition of Europeanness, some have argued that the most urgent tasks of social movement politics would be circumscribed by the aim to increase participatory democracy on the grassroots level and to strive for a more inclusive transnational polity (Newman 2002). However, so far the social movements campaigning for social justice with regard to sexuality and gender have largely refrained from challenging these hegemonic assumptions and the ways they shape the political process within the EU. They have set their hopes primarily in addressing the legal institutions of either the Council of Europe, i.e. the European Commission on Human Rights (defunct since October 31, 1999) and the European Court of Human Rights (ECHR) (existing as a full-time institution since 1998) and more recently of the European Union, i.e. the European Court of Justice (ECJ) (cf. Bell 1998, 2002, Morgan 2000, Neumann 2004, Whittle 2002, Beger 2000, 2002). It is important to explicate at this point that the ECHR as a court established by the Council of Europe to safeguard its member states’ adherence to the Convention for the Protection of Human Rights and Fundamental Freedoms is not an EU institution. However, Carl Stychin (1998) is quite right to argue that the European Convention on Human Rights provides an alternative arena for the mobilisation around rights that is located at the ‘periphery of EC law’. Although formally outside the scope of ‘European law proper’, it has in fact been incorporated into the domestic law by most EU countries. Moreover, membership in the Council of Europe is a requisite for joining the EU and new members of the Council are obliged to ratify the Convention. Due to these institutionalised interrelations, Stychin describes the Convention as the ‘civil and political other to the central role of economic rights in the EU’ (p. 129)[3].

It is undeniable that the ECHR has in many cases ruled in favour of litigants, who have protested against the violation of their rights codified in the Convention for the Protection of Human Rights and Fundamental Freedoms. For example, in the UK movements were able to force the government to repeal discriminatory laws and policies in the areas of consensual sex between adult men, the age of consent, and the military ban (cf. Bamforth 1997, Skidmore 1998, Neumann 2004, Stonewall 2004, Hale 2004). However, there have been also some negative rulings. One example is the so called Spanner Case. In 1997, the ECHR upheld the right of British Courts to sentence 16 gay men for consensual s/m activities on the grounds of a law that criminalises the infliction of ‘actual bodily harm’ (cf. Stychin 1995, Creith 1996, Gibbins 1998, Countdown on Spanner 1997, Weait 2005). Although international human rights bodies, and in particular the ECHR, have in principle overcome their long and stubborn reluctance to engage with human rights violations in the area of sexuality and although there is increasing evidence that international human rights may prove advantageous to challenge legal and social discrimination (cf. Morgan 2000), a successful result cannot be taken for granted. That notwithstanding, social movements in countries such as the UK, where the national legal system has been highly resistant to liberalising initiatives, have perceived the ECHR as a promising arena for social and legal struggle (Stychin 1998: 136).

EU institutions, too, have been successfully lobbied to intervene in human rights violations with regard to gender and sexuality. For example, according to Adrian Coman, former Executive Director of ACCEPT (a Romanian Human Rights Organisation), it was largely due to the pressure of the EU, and in particular of the EP (rather than the Council of Europe, the UN, Amnesty International, Human Rights Watch, or international human rights NGOs) that Romania finally decriminalised homosexual acts in 2002 and included references to sexuality in its anti-discrimination legislation (Stychin 2003: 134).

The ECJ, too, has been addressed in order to intervene in cases of discrimination on the grounds of sex and sexual orientation (mostly in the field of employment) and to claim rights codified in the Treaties. While challenges of discrimination on the grounds of sexual orientation (such as in the case Grant vs. SWT)[4], have not produced the out-come activists and lobby groups had hoped for, many interventions in the field of transgender rights addressing the ECJ have proven successful (cf. Whittle 2002, Hale 2004)[5]

However, despite significant successes of rights claims in the field of EU sexual politics, the ideological bias of EU citizenship and the economic grounding of its rights discourse should make us more sceptical about the potential of political strategies framed within the citizenship and rights model to have radical or progressive effects. EU human rights and citizenship law is only accessible to people, who are nationals of an EU member state. This inevitably rules out many residents of members states– even if they may have been living in these countries for many years (Stychin 1998, Bell 2002). Campaigns for immigration and citizenship rights for lesbigay and transgender people have mirrored this constricted definition of rights in that they have primarily focussed on the right of EU citizens to live with their partners, rather than critiquing the racist practices of immigration control and deportation. Moreover, the fact that EU ‘equality law’ has been derived from the conviction that there should be equality at the work place and on the labour market means that it addresses people primarily as ‘active market actors’. As a consequence, campaigns for lesbian and gay equality have frequently claimed that discrimination would result in a distortion of the market or be economically inefficient. Carl Stychin (1998) traces such arguments in EU campaigning documents of the English law reform Group Stonewall and the pressure group Lesbian and Gay Employment Rights (LAGER) (pp. 140-141). Rather than challenging the prevailing reductionist paradigm of rights, such rhetoric reinforces the dominant market based liberal choice model and the exclusions based thereupon. This representation tends to masks the empirical fact that in reality not everyone has got the possibility to claim their rights in courts. Citizenship, residence and work permits, financial resources, time, professional support, etc. are factors that play a decisive role in determining the scope for legal action of any particular individual (Najafi 2006). Other problems consist in the fact that campaigns for legal reform tend to foster a culture of expertism and lobbyism, a process that Carl Stychin has referred to as the ‘lawyerisation’ of sexual politics (Stychin 1998, 2003). Moreover, campaigns for legal change inevitably activate a model of subjectivity compatible to legal discourse, i.e. the unitary, individualistic, and rational subject (cf. Morgan 2000, Beger 2002).

Framing a social or political problem as a claim for rights that are supposedly enforceable in the courts has the inevitable effect of individualising this particular problem. If rights bearers are constructed only or primarily as individuals, the problem of ‘inequality’ is cast as an individual problem, as something that has gone wrong in an otherwise perfect system (cf. Rahman 2000)[6]. However, even if rights are claimed in the name of collectivities (e.g. lesbians, gay men, bisexuals, transgenders, etc.) this act insinuates that there is a homogeneous constituency at the basis of these ‘groups’ of people (Wilson 1993, Phelan 1995, Squires 1999). This obscures the diversity among ‘queer’ people, which reinforces the misleading assumption that every rights claim would benefit each and every individual to the same degree. This assumption overlooks the fact that many legal rights struggles concern rights that may be particularly relevant (or only relevant at all) for people of a particular gender, social class, or citizenship status.

In the following, I will theoretically enhance the argument that sexual politics in the name of ‘equality’ or ‘citizenship’ have a tendency to enfold normative and exclusive effects. Apart from the specificities of the EU citizenship model discussed so far, this problem also results from more profound ambivalences built into political strategies based on calls for ‘equality’ and ‘citizenship’. It is further aggravated by the fact that these politics are regulated by hegemonic modes of public sphere inclusion.

The Structural Limitation of Equal Rights Politics

Campaigns for intimate and sexual rights and legal reform are frequently framed within a liberal discourse on equality. A range of feminist, queer, and anti-racist scholars and activists have argued that liberal political theory’s concept of equality is inherently limited. This problem stems from the construction of the subject as an individualistic, self-contained being, stripped of her or his social relations. Social divisions that structurally affect people of certain social groups are generally not taken into account (cf. Young 1990, Phillips 1993, 1999, Kymlicka 1995, Cooper 2004). If framed within the minority rights paradigm, equal rights campaigns further tend to feed into an essentialism that disavows differences within the constituencies of certain groups (cf. Phelan 1995, Herman 1993, Wilson 1993, Rahman 2000). Campaigns for rights for discriminated people modelled on these assumptions consequently are limited and problematic, because they tend to obliterate oppressive discourses such as heterosexism, sexism, racism and economic inequalities that affect in differentialist fashion individual people’s lives. A further short-coming of the classical liberal rights discourse is its implicit confinement to political and civil rights, although discrimination is often practically articulated in the social sphere which tends not be tackled at all (Pateman 1988, Phillips 1994).

Gay and lesbian or bisexual liberal equal rights politics consequently do not cover the whole range of oppression and discrimination. Momin Rahman (1998) argues that they frequently reinforce the institutionalised dominance of hegemonic cultural forms. In a similar vein, Stevi Jackson (1998) argues that any strategy aiming at equal rights with heterosexuals would have to be based on a critique of heterosexuality. Because homosexuality is intrinsically related to normative regimes of gendered heterosexuality, material equality is only possible if the structural meanings and dominant practices of heterosexuality are transformed in cultural and political struggle. Expressing a similar insight, Carl Stychin has shown that due to the prevalence of sexism and gendered divisions regarding employment and income scores, a struggle for sex equality, such as it has been staged in Grant vs. SWT, would have profited men more than women – if it had been successfully fought at the ECJ. The equal rights logic expressed in anti-discrimination law fails to address structural inequalities and its intersections with each other. Equal rights struggles therefore may in particular improve the situation or address the concerns of groups of people, who already are privileged within a particular socio-legal context (Stychin 2003: 88).

The problem becomes even more obvious in cases were the aspired right is linked to apparently unjust or undemocratic practices. ‘Principles of equality always depend on other principles determining the value of the benefits which the egalitarian principles regulate‘, argues Joseph Raz (quoted by Wilson 1993: 187). Wilson concludes from this insight that we cannot keep up equality as an independent ideal. Rather, the value of equality can only be determined, if seen in relation to other political values. True justice realised in equality consequently would have to represent a variety of values, which result from the differences that characterise the constituencies of marginalised groups. This depends on a careful analysis of structural power relations and the ways in which differential social positioning in terms of race/ethnicity, gender, class, etc. affect queer subjects and collectivities. Such modes of analysis and political strategy tend to be precluded by the individualising and essentialising tendencies inherent to liberal equality discourses.

I think these arguments throw a critical light on some of the prominent campaigns of the lesbian and gay male and bisexual movements in the UK (and elsewhere), such as the right to serve in the military or the right to marry a same-sex partner. The case that the abstract ‘value of equality’ may clash with important values, such as non-violent and peaceful negotiation of political conflict, egalitarian relationships, autonomous (or collective) judgement or decision making, and participatory democracy is most obvious in the case of the campaign for the right to serve in the military as an out gay man or lesbian (Outrage! London 1999). A similar ambivalence also marks the campaign for marital rights, inasmuch it addresses a set of laws, institutions and cultural practices that are rooted in or promote patriarchal, heteronormative or ethnocentric traditions (Rahman 1998, Bell and Binnie 2000, Lehr 1999, Cooper 2004).

The Structural Limitation of Citizenship Politics

In contemporary political discourse, politics striving for equal rights are often framed as a politics of citizenship. In the British debate on citizenship the work of T.H. Marshall has been extremely influential, if not paradigmatic. Marshall has defined citizenship as ‘a status bestowed on those who are full members of a community. All who possess the status are equal with respect to the rights and duties with which the status is endowed’ (1950: 14). Marshall’s primary concern was with social class and he stressed civil, legal, political and social rights as the basic components of a historically evolving citizenship status.

Contemporary citizenship debates have gone far beyond Marshall’s frame by stressing the gendered, racialised and sexualised dimensions of citizenship discourses and practices. According to a widely held criticism, Marshall’s definition of citizenship as ‘full membership in the community’ fails to acknowledge that people are in fact involved in manifold communities or identity-based projects. This assumption implicitly challenges the universalism at the heart of dominant citizenship discourse (cf. Yuval-Davis 1997, Lister 1997, Weeks 1998, Carver 1998, Plummer 2001, 2003). It is only through an emphasis of the multi-layered character of citizenship that politics in the name of citizenship can take account of these complexities. In order to realise its full democratic potential, many argue, we have to sever the exclusive ties of the concept to the terrain of the nation state – or meta-state constructs such as the EU (cf. Werbner and Yuval-Davis 1999, Richardson 2000). It is only if we broaden the scope of analysis beyond the aspect of law and legal entitlement, that it becomes obvious that ‘full membership’ in any particular ‘community’ tends to be defined in much more subtle ways. The reticence or outright denial of EU member states and EU institutions to acknowledge rights-claims by third country nationals (i.e. citizens of non-EU member states) stands in clear opposition to such a broad interpretation of citizenship.

However, there are further reasons why it is questionable whether ‘citizenship’ provides a suitable discourse for the mobilisation of a radical queer sexual politics. Because citizenship is granted on the grounds of adherence to codes of sexual behaviour/identity, Bell and Binnie (2000) claim that citizenship discourse follows a logic of compromise: ‘the twinning of rights with responsibilities in the logic of citizenship is another way of expressing compromise - we will grant you certain rights if (and only if) you match these by taking on certain responsibilities’ (2000: 3). Due to the heteronormative character of hegemonic interpretations of citizenship, politics in the name of ‘citizenship’ tends to foreclose aspects of sexuality that are written off as “unacceptable” (cf. Evans 1993, Johnson 2002, Richardson 2000). Claims to citizenship by groups marginalised on the grounds of sexuality have frequently attempted to create purified self-representations of themselves as respectable, law- and morality-abiding citizens. This endeavour tends to go hand in hand with a readiness of parts of social movements to distance themselves from others whose demands and/or lifestyles have exceeded the narrow terrain mapped by citizenship discourses (Smith 1994). This is one of the reasons why a wide range of issues, such as non-monogamy, casual, recreational, or ‘public’ sex, BDSM, transsexuality, transgender, butch/femme identities, drag, camp styles, etc. have caused heated debates in European lesbian, gay male, and bisexual movements that frequently led to formal and/or informal measures of exclusion. The political demand that these movements should distance themselves from certain practices or exclude queers and other groups of people is not always articulated in strictly moral terms. It is not an inevitable effect of identification, either. Often such a demand is born out of a particular understanding of the political process. For example, some respondents in a recent study of mine about non-monogamy have described the gay male ‘scene’ as irresponsible and immature. According to their point of view, many gay men’s public endorsement of highly sexualised lifestyles would have negative effects on all gay men, because such behaviour would naturally and inevitably reinforce straight society’s contempt of the ‘gay community’ as a whole and consequently hinder the movement’s ambition to gain integration (Klesse 2003).

The outrage about sex-crazed, promiscuous or politically sex-positive queers emerges from the belief that an inclusion into the community of proper citizens would be possible, if we only conformed to expected codes of propriety. Within the context of this political reasoning, the concerns of particularly stigmatised groups are frequently willingly sacrificed in the process of political bargaining about certain rights.

However, condemnations of ‘reformism’ and ‘assimilationism’ frequently fail to realise the subtlety with which normativity works through the political process. Like politics of ‘visibility’, political strategies around ‘equality’ and ‘citizenship’ are mediated by dominant modes of ‘public sphere inclusion’. In order to avoid getting drawn into the normalising spin of the discourses that regulate processes of inclusion, sexual politics need to draw upon a careful analysis of the complexity of power relations that encompass queer subjectivities and the construction vis-a`-vis both the state and the ‘public sphere’ .

Politics and Public Sphere Inclusion

Although feminists and queer theorists have argued for a long time that the notion of a single, homogeneous and universal public sphere is regulatory fiction in the service of manifold exclusions, these insights have so far been only insufficiently translated into sexual politics (cf. Young 1990, 2000, Duncan 1996, Fraser 1997, Cooper 2001, Hubbard 2001, Warner 2002). Mainstream sexual gay and lesbian and bisexual politics have tended to challenge the exclusion of their own identity category or group from public sphere participation, without deconstructing the chief processes through which public sphere discourses enfold their normative powers and without tackling the differentialising effects of the discursive axes gender, race, ethnicity, class and sexuality therein.

Eric O. Clarke’s (2000) work on the ambivalences and contradictions of the discursive and political processes that grant queers public sphere inclusion is quite elucidating here. The promise of integration and equality that is considered as the truly democratic potential of the public sphere is predicated on complex processes of value determination (cf. Evans 1993, 1995)[7]. The class-based, gendered, racialised and heteronormative bias that has run through the history of ideal public sphere representations impinges on the determination of particular interests as worthy of the public interest (cf. Wilson 1995, Phelan 1995, Cooper 1994). The distribution of equity is consequently governed by unduly universalised moral codes derived from the ideals of bourgeois publicity. Thus, the efforts of queers to gain access to publicness (or publicity) have taken place in a context that fosters conformity. The need for self-censorship has been felt to a particular degree with regard to sexuality, because due to the heteronormative and rationalistic character of hegemonic constructions of the public sphere, sex and eroticism have clearly been located outside the parameters of the public interest (cf. Warner 2002, Duncan 1996, Young 1990). Politics aiming at public sphere inclusion are thus marked by a profound ambivalence that is inscribed at the very heart of the political discourse. They are consequently likely to have various exclusive and/or normative effects. For example, the argumentative strategies of the campaign for same-sex marriage or registered partnerships have been marked by a strong affinity with the above mentioned normative principles and modes of value determination that govern dominant public sphere representations (cf. Sullivan 1995, 1997, Warner 1999). Although usually cast as a demand for equality with heterosexuals (i.e. ‘equality as non-discrimnation’), this undermines the relevance of these initiatives for increasing ‘equality as diversity’ or ‘substantial equality’ with regard to the lives of queer people (cf. Bell 2003). In her discussion of the normative dimensions of the campaigns for same-sex partnership rights, Davina Cooper explains:

‘Two normative principles that proved central to the refraction of spousal recognition reforms are proper place and public/private. In their prevailing discursive and citational structure, with their stress on propriety, propinquity, and akinship, both work to limit the normative impact of the reforms. They also, I argue, inflect and narrow the egalitarian impulse of extending spousal status by channelling benefits to those whose lives, for reasons of class, race or life choices, already dovetail most comfortably with dominant readings of the proper and the public/private’ (2004: 201)

In the light of this critique, social movements need to develop a more critical understanding of the value determinations at the heart of hegemonic modes of public sphere inclusion, if they want to avoid the normative and exclusive dynamics built into dominant equal rights or citizenship discourses.

Ambivalence and Critical Pragmatism

The accession of ten new member states and the enlargement of the EU in May 2004 have altered the terrain for sexual politics in Europe. Human rights organisations and LGBT campaigning groups across Europe have seen this transformation as a chance for enhancing human rights and participatory democracy for queer people in the new member states in this political process (ILGA Europe 2001, ILGA 2004).

It is out of question that the historical moment of accession provided an advantageous strategic moment for staging effective campaigns around human rights issues and themes of democratisation. However, inasmuch governments have undertaken steps in such directions primarily in order to comply with EU laws and directives for the sake of obtaining economic goals associated with EU membership, policy change may not have long standing effects in the countries that have successfully completed the accession process (cf. Schimmelfenning and Sedelmeier 2005a, 2005b). With exception of the cases of Romania, Bulgaria, Turkey, Croatia, and the former Yugoslav Republic of Macedonia (and other prospective candidate states) the specific constellations of power linked to the question of accession have profoundly altered through formal accession on May 1, 2004. Campaigns that focused on the moment of accession have further frequently fed representations of the political project of the EU that failed to emphasise problems regarding democracy and multiple forms of discrimination within the already existing member states.

Although equality and non-discrimination have been important topics in the political debate within EU political institutions, practical initiatives for the realisation of these values have been insufficient and in particular sexuality has remained a highly divisive issue. Some analysts have noted a nuanced reluctance within the EU to commit to a politics of sexual diversity and non-discrimination on the grounds of sexuality (Bell 2002, Bell 2003). Although ‘equality’ has been endorsed as a central value in EU political discourse, its definition has remained unclear. Provisions are generally uneven, depending on the form of discrimination at stake. Sexuality has remained to be one of the most contentious subject issues in this debate. There is clear evidence that the personal and political freedom of lesbigay, transgender and queer people have remained under attack in many EU member states. For example, there has been a series of bans on Equality marches and parades in Poland (such as the ones in Warsaw in June 2004 and May 2005 and - most recently – the one on November 15, 2005 in Poznań) due to the participation and organising role of LGBT groups at these events. These and similar events, such as the Culture for Tolerance festival in Cracow, May 6-9, 2004, have triggered homophobic attacks by morally conservative politicians and media representatives. Attempts to stage LGBT protests in spite of an official ban have been met by harsh police repression (Amnesty International 2005, Basiuk 2005). It is questionable, whether the value of sexual diversity is currently high enough on the agenda of EU anti-discrimination politics that EU institutions will build up sufficient pressure to effectively challenge this restriction of political freedoms within EU member states.

My discussion of campaigns for legal reform in the old member states has shown that the ECHR and the ECJ have been successfully addressed to initiate or enforce legal, political, and policy changes for people that are discriminated against on the grounds of sexuality and gender. At the same time, I have directed attention to court cases with less fortunate outcome in order to caution that the success of such litigations can never be taken for granted. Specific problems emerge from the centrality of economic considerations and values in the genesis of the EU as a political structure. This has had specific drawbacks in the cases where campaigns for equality have mobilised around EU citizenship. The fact that EU citizenship has originally evolved around market-related rights and originally served primarily economic objectives has resulted in a particularly narrow definition of EU citizenship. Even if narratives of democracy, equality, human rights, and multiculturalism have emerged as prominent features of a quasi-nationalistic sense of ‘Europeanness’, they barely mask the lasting legacy of the market-centred character of EU citizenship. Struggles for equal rights at the ECJ have therefore inevitably been constricted to primarily employment-related topics. LGBT campaigning groups have further frequently adapted to a discursive terrain that has privileged economic rights and processes over more substantial definitions of ‘social justice’ (Stychin 1998, 2003). Although EU equality and anti-discrimination law has been used successfully by litigants to challenge discrimination on the grounds of sex and sexuality, these measures have only been accessible to member state nationals. This is one of the instances that makes obvious that politics in the name of equal rights and citizenship do not operate on a universal plane. Even if cast in a collectivist political language, legal rights struggles tend to have only partial effects, in the sense that they primarily serve the interests of particular constituencies. Apart from that, only particular subjects come into consideration as qualifying for rights claims. Carol Smart describes the highly selective function and normative spin of the rights machinery as following:

‘[R]ights can be claimed only if the claimant fits the category of persons to whom the rights have been conceded. (…) [T]he state must have detailed knowledge of each individual in terms of marital status, employment status, citizenship status, age, sex, legitimacy, contribution records, and so on. In order to claim rights the individual must fit into specified categories; the rights are not basic rights but formal rights and conformity to specification is a prerequisite for exercising such rights.’ (1989:162)

Rights claims both require a certain status or identity and are at the same time constitutive of certain modes of subjectivity. From such a Foucauldian perspective, rights struggles are inevitably bound up with modes of surveillance, regulation and normativity (Beger 2000, 2002, Beger et al. 2000). Bargaining for rights in the legal arena is further conducive of particular styles of politics and argumentation and is frequently dependent on professional mediation. Struggles for legal reform thus have certain drawbacks, which I have referred to in this article as the ‘structural limitations’ of equal rights or citizenship politics. I have argued that these political strategies are further motivated by a desire for public sphere inclusion. However, hegemonic modes of ‘public sphere inclusion’ tend to attribute particular value to certain subject positions and cultural forms. The gendered, racialised, classed, disembodied, de-sexualised and heteronormative character of dominant public sphere discourses is at the same time not conducive to claims for recognition by a wide range of already marginalised people. I do not argue that it is wrong to claim rights or to struggle for legal reform. However, I think it is important to acknowledge the implicit partiality and ambivalence of rights- and citizenship-based politics. Such an acknowledgment may foster a more cautious position when approaching the question of legal reform. Didi Herman (1993) and Carl Stychin (2003) have referred to such a position as critical pragmatism. Critical pragmatism assumes that struggles for legal change may provide one important and legitimate strategy. It directs critical attention to the political language in which rights claims are cast. It is based on an understanding of politics, according to which legal reform should never be severed from other forms of political action and a wider social movement for social and economic change. Both our fantasy and careful socio-political analysis is called upon in order to work out how such struggles could look like and how they relate to the political projects in other fields of politics.

I am grateful to the discussants at the Conference ‘Europe without Homophobia. Queer-in(g) Communities’ at Wroclaw University (May 2004) and the International Workshop ‘Exploring Key Concepts in Feminist Legal Theory: the State, Governance, and Citizenship Relations’ at Keele University (May 2005) and the participants in the ‘Work-in-Progress’ seminar series at the Law School at Keele University (November 2004) for their thoughtful comments on my presentations on this topic. I am particularly indebted to Ruth Fletcher for her detailed feedback on my presentations and to Umut Erel and Adrian de Silva for their helpful advice on how to revise previous drafts of this article.

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[1] On May 1, 2004, Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia (Slovak Republic) and Slovenia joined the EU. The EU is now made up by 25 member states. Romania and Bulgaria will join the union in the year 2007. Croatia, the former Yugoslav Republic of Macedonia, and Turkey are currently negotiating the conditions for future membership as ‘candidate countries’.

[2] In a report on the process of the negotiation of accession published in 2001, they claim:

‘A precondition for accession, as set out in the Copenhagen criteria, is the establishment of respect for human rights, including the protection of minorities. Moreover Article 6(2) EU provides that “the Union shall respect fundamental rights, as granted by the European Convention for the Protection of Human Rights and Fundamental Freedoms”. It is clear that, as a minimum, the accession countries must bring their laws and practices into lines with the jurisprudence of the European Convention.’ (ILGA Europe 2001: 7, quoted by Stychin 2003: 135)

The determinacy of the language used in this report reveals that the term ‘negotiation’ is in fact a euphemism, because the EU (and many political actors within the EU) considered many political and organisational principles and standards as ‘non-negotiable’.
[3] The high significance of the Convention for the self-understanding and self-representation of the EU as an ethico-political subject is also highlighted in the ILGA report on accession that I quoted in footnote two of this article. On the grounds of the clear commitment of the EU to human rights and the protection of minorities, ILGA advances the following argument: ‘It is clear that, as a minimum, the accession countries must bring their laws and practices into lines with the jurisprudence of the European Convention.’ (ILGA Europe 2001: 7, quoted by Stychin 2003: 135)
[4] In i>Grant v South West Trains, the ECJ ruled that the refusal of an employer to grant travel concessions to a same-sex partner with whom an employee has a ‘stable relationship’ – even if such concessions would be generally granted to an other-sex partner in this relationship category – would not constitute discrimination based on the ‘sex’ of the worker, as prohibited by Article 141 (then 119) of the EC Treaty and the Equal Pay Directive. Linda Grant had taken her employer South West Trains LTD to court for denying her female partner a travel pass. On February, 17, 1998 the ECJ decided against the interpretation suggested by Grant’s lawyers and supportive campaigning groups that this was a breach of the principle of ‘sex equality’ (cf. Beger 2000, Stychin 2003: 75-92).

[5] Whittle (2002) argues that decisions of the ECJ have been more likely to be in favour of transgender rights than the ECHR, because of the different implications of their juridical positions. If the ECHR finds that a state has broken the Convention, such a decision has a significant moral weight and places the respective state outside of the signatories of the Convention and the treaty that carries it. However, usually the ECHR is quite cautious to do so, unless human rights violations are involved that are considered being very serious, such as torture and asylum cases. In the case of negative decisions against a nation by the EJC, such a verdict does not have comparative stigmatising effects. The court simply exemplifies that the respective state has misinterpreted its duties under EU law. Because the ECJ mainly promotes economic harmony through social justice, human rights issues are not directly or explicitly invoked (p. 201).
[6] I am grateful to Umut Erel for directing my attention to this problem.
[7] Clarke specifies the following processes of value determination: Firstly, the common mediation of queer interests through modes of commercial value extraction tends to be represented as enhancing queers’ access to participatory democracy. Secondly, queer ‘proxies’ promoted in contemporary visibility politics tend to get attributed the value of authenticity. This is the more problematic, because ‘visibility politics demands not just i>more images of queers, but qualitatively “normal’ ones whose partiality is understood as a corrective accuracy’ (Clarke 2000: 35). This means that the partiality of these normative images is obliterated. They are assumed to truly represent the collectivity they are supposed to stand for. The repudiation of the subjectivities that are continuously problematised in stigmatising representations of so-called ‘bad queers’ is implicit to this process. The conjunction of these processes results in a situation, in which restricted, conformist and exclusive forms of publicness can be presented as if they would symbolise universal equality and participatory citizenship

Christian Klesse

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