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This chapter offers an elaborate analysis of the position of same-sex couples and rainbow families under the ECHR and EU law. Addressing issues such as marriage and partnerships, parenthood and parental responsibility, but also social benefits, family reunification and the legal recognition of family ties established abroad, the chapter takes the view that the recognition and protection of family relationships can follow multiple paths and that the ECtHR case law and EU law are mutually reinforcing for the benefit of the rights of same-sex couples and their children. The chapter also acknowledges that subsidiarity considerations lead European bodies to favour a compromise approach, refraining from forcing states to abandon their traditional conception of family law’s fundamental institutions: marriage and parenthood. The chapter, nevertheless, suggests that, at some point in the future, the increased visibility and legitimacy of same-sex couples and rainbow families should ultimately lead to imposing a European and inclusive understanding of these institutions.
This chapter offers an elaborate analysis of three recent cases by the Court of Justice of the EU in the context of EU free movement law. The cases deal with the questions of whether and to what extent the EU Member States are obliged to accept a family status created abroad even when it is incompatible with their own family law (such as same-sex marriage and same-sex parenthood) or is a status totally unknown in their legal system (such as the Islamic kafala). The chapter argues that the main approach chosen by the Court regarding same-sex marriage and same-sex parenthood created abroad, obliging the Member States to recognise them for the purpose of free movement only, may give rise to practical problems.
Marriage equality was a significant achievement, one that yielded both practical and symbolic benefits for hundreds of thousands of queer households. At the same time, marriage equality is not the same as full equality. In the years since the Obergefell decision, LGBTQ rights advocates have continued to fight difficult and demoralizing battles against harmful laws and policies, which have increasingly targeted transgender rights. However, the movement’s past successes should offer hope for the future. The history of gay and lesbian rights advocacy reveals that small victories at the state and local level, brought about by working with nonlegal actors, can transform both the law and society. Although advocates have not yet achieved gay liberation’s visions of the future, they have attained meaningful reforms. The movement’s history thus offers a crucial reminder that the law can change society for the better.
Over the course of the 1980s and 1990s, same-sex couples had become visible as partners and parents, as well as integral members of straight families. This chapter demonstrates how these previous victories on behalf of the queer family made marriage equality possible. When the movement for marriage equality began, advocates emphasized that allowing same-sex couples to marry was a matter of ensuring justice and equality. However, that argument failed to persuade decisionmakers, who instituted same-sex marriage bans around the country. Advocates were only able to gain legal ground when they began emphasizing how discrimination harmed longstanding, devoted same-sex couples, the children they raised, and the straight parents who loved them. They were able to stake these claims because gay- and lesbian-headed households already existed, thanks to years of family-centered strategies. Although marriage equality is the queer rights movement’s best-known success, it came as a postscript to decades of family-centered strategies.
This article focuses on how the policy on same-sex marriage and a person’s social locations impact upon Chinese lesbians’ life chances and welfare. Bringing the familisation and defamilisation literature, which has predominantly focused on heterosexual populations and families, into dialogue with an intersectionality perspective, we map the ways in which gender, sexuality, and class intersect in shaping lesbians’ experiences of defamilisation and familisation risks. The findings, drawn from interviews conducted in Beijing, China, reveal that the absence of legalised same-sex marriage, coupled with a lack of familial and societal recognition of same-sex relationships, exposes lesbians to both defamilisation and familisation risks, leading to difficulties in choosing whether and how to participate in the family. The intersectionality lens guides us to move beyond the heterosexual/homosexual boundary and to rethink the possibility of welfare alliances that can improve the welfare of not only lesbians but also other groups of women and minorities.
This article builds a bridge between research on the queer economy and that on the mixed economy of welfare by developing the ‘queer economy of welfare mix’ framework. While the two fields are related, there is a lack of discussion about the queer dimensions of the mixed economy of welfare or the mixed strategies employed by lesbian, gay, bisexual, trans, and queer (LGBTQ+) individuals to explore the benefits and limitations of the queer economy. The purpose of our framework is to show how local and transnational goods provided by the mixed economy of welfare can enable LGBTQ+ individuals to organise their welfare through the mixed strategies – citizen strategy, consumer strategy, and consumer-citizen strategy. By examining Taiwan’s legalised same-sex marriage and its impact on Hong Kong and Mainland China, we demonstrate the empirical significance of the framework, which serves as an analytical tool for examining the government’s role in promoting LGBTQ+ individuals’ welfare and the challenges involved.
This article examines whether and to what extent legalised same-sex marriage can assist lesbian, gay, bisexual, trans, and queer (LGBTQ+) people to develop family life and protect them from defamilisation and familisation risks. It focuses on the provision of and gaps in welfare for LGBTQ+ people since Taiwan’s same-sex marriage legalisation in 2019. A content analysis of online community discussions since marriage equality shows that local LGBTQ+ community discussions were filled with concerns about the lack of familial status for cross-border couples, lack of legal parental status and rights for same-sex parents, and questions about heteronormative values and kinship ties. This article reveals how heteronormative assumptions embedded in the policy system and in the wider society adversely influence LGBTQ+ people’s welfare, and identifies supplementary and alternative measures. It highlights the importance of providing universal basic services free from heteronormative biases and prioritising the well-being and rights of all citizens.
In October 2022 the Church of England commissioned an examination of the impact of the debate on same-sex blessing and same-sex marriage within other Anglican Churches. The examination involved a literature search, an original survey among key informers and a general internet search. This paper draws on the general internet search to contrast the impacts in New Zealand and Australia. Drawing on Jungian psychological type theory, this analysis employs the contrasting decision-making functions of feeling (concerned with subjective interpersonal values) and thinking (concerned with objective logical analysis). The data suggest that the feeling approach dominant in New Zealand, which prioritized offering space and time for those of differing opinions to meet together, reported more positive outcomes than the thinking approach dominant in Australia, which gave greater priority to adversarial debate.
Legal and social movement scholars have long puzzled over the role of movements in moving, being moved by, and changing the meanings of the law. But for decades, these two strands of scholarship only dovetailed at their edges, in the work of a few far-seeing scholars. The fields began to more productively merge before and after the turn of the century. In this Element, the authors take an interactive approach to this problem and sketch four mechanisms that seem promising in effecting a true fusion: legal mobilization, legal-political opportunity structure, social construction, and movement-countermovement interaction. The Element also illustrates the workings and interactions of these four mechanisms from two examples of the authors' work: the campaign for same-sex marriage in the United States and social constitutionalism in South Africa.
The emergence and dissemination of new legal ideas can play an important role in sparking change in the way activists in marginalized communities understand their rights and pursue their objectives. How and why do the legal beliefs of such communities evolve? We argue that the vigorous advocacy of new legal ideas by entrepreneurs and the harnessing of specialized media to help disseminate those ideas are important mechanisms in this evolution. We use the rise of marriage equality as a central legal priority in the mainstream American LGBTQ+ rights movement as a case study to illustrate this phenomenon. Using a mixed-methods analysis of Evan Wolfson’s legal advocacy and an examination of The Advocate, we investigate how Wolfson developed and disseminated legal ideas about same-sex marriage. We show how this advocacy eventually dominated discussion of the issue among elite LGBTQ+ legal actors and the nation’s largest LGBTQ+ publication. However, Wolfson’s advocacy tended to emphasize LGBTQ+ integration into “mainstream” American culture and prioritized the interests and values of relatively privileged subgroups within the LGBTQ+ community. Our research informs our understanding of the interplay between legal advocacy and media reporting in the development of LGBTQ+ rights claims and the strategies adopted to achieve them.
Right-wing candidates have rallied against same-sex marriage, abortion, and ‘gender ideology’ in several recent Latin American elections, attracting socially conservative voters. Yet, these issues are largely irrelevant to voting decisions in other parts of the region. Drawing on theories explaining partisan shifts in the US and Europe, we argue that elite and social movement debates on sexuality politics create conditions for electoral realignment. When politicians take polarized positions on newly salient ‘culture war’ issues, the masses’ voting behaviour shifts. Using region-wide multilevel analysis of the AmericasBarometer and Latinobarómetro and a conjoint experiment in Brazil, Chile, and Peru, we demonstrate that the rising salience of sexuality politics creates new electoral cleavages, magnifying the electoral impact of religion and sexuality politics attitudes and shrinking the impact of economic views. Whereas scholarship on advanced democracies posits the centrality of partisanship, our findings indicate that sexuality politics prompts realignments even in weak party systems.
In 2019, Taiwan became the first in Asia to legalize same-sex marriage (SSM). This article considers the social movement strategies and relational dynamics of three activist groups in the year leading to the landmark SSM legislation, respectively representing the “yes,” “no,” and “alternative” agendas in the public debates and social mobilization around the issue of equal marriage rights. Through a critical study of the three cases, this article examines how various campaigners shaped local SSM discourses and mobilized people to support, oppose, and question marriage equality, focusing on their social mobilization strategies and inter-group relational dynamics under Taiwan's political and legal structures. In so doing, it proposes a hybrid theoretical model to understand complex social movement and countermovement relations and dynamics.
Same-sex marriage has risen to the top of political agendas across Latin America, but it is still illegal in many countries. Public support about the issue varies greatly, and the roles of the courts, presidents, and legislatures have also differed. This article focuses on legislators because they are charged with representing the public and converting demands into policy. Although many legislatures have now voted on the issue, the literature has not intensively examined the policy makers’ attitudes toward same-sex marriage. This study applies a theoretical framework that extends theories considering context and social contact and uses a survey of the region’s legislators to study the correlates of support for same-sex marriage. Although the study also tests for individual-level variables (e.g., gender and ideology), the models focus on the contextual role of religiosity. The results show that having more secular colleagues encourages even pious legislators to support same-sex marriage.
This chapter offers an assessment of judicial fragmentation in international human rights law. The first part of the chapter presents a comparative analysis of the case-law of the three regional systems and the UN Human Rights Committee on rights that are the highly susceptible to trigger fragmentation, either for the relevance of religious, cultural and political concerns or for the vagueness of some terms in the norms’ provisions that could possibly allow very different interpretations. As this analysis shows a substantial convergence or absence of fragmentation, the second part of the chapter focuses on the detailed analysis of the few cases of judicial fragmentation identified, exploring their features in depth. They include case-law on freedom to wear religious attire, indigenous rights and the right to marry for same-sex couples.
Gender constitutionalism in the new millennium is challenging both the hegemony of the heterosexual marital family for the sake of nonmarital and nonheteronormative affective unions and – slowly but increasingly – the gender/sex categorization system through the gradual affirmation of a right to gender identity. While these evolutions point in the direction of the disestablishment of the gender order and, according to some, even question the enduring constitutional relevance of the very concept of gender, over the last decade we observe with growing concern a global movement (exemplified through evolutions in Central and Eastern Europe) fed by neoconservative, populist nationalist, and religious fundamentalist forces of various kinds, promoting preemptive action or triggering backlash to combat what has come to be identified as “gender ideology” in an attempt to reaffirm traditional family and gender roles. The reproductive rights of women, as well as equality rights of sexual minorities and gender nonconforming individuals, have become new targets under increasingly organized strategies and attacks, which include sophisticated tactics of constitutional lawfare.
Constitutions around the world have overwhelmingly been the creation of men, but this book asks how far constitutions have affirmed the equal citizenship status of women or failed to do so. Using a wealth of examples from around the world, Ruth Rubio-Marín considers constitutionalism from its inception to the present day and places current debates in their vital historical context. Rubio-Marín adopts an inclusive concept of gender and sexuality, and discusses the constitutional gender order as it has been shaped by debates such those around same-sex marriage and the rights of trans persons. Covering a wide range of themes, from reproductive rights to political gender quotas and violence against women, this book offers a comprehensive feminist account of constitutional law. Truly international in scope and ambitious in subject matter, this is an invaluable resource for students and scholars working on gender within multiple disciplines.
This chapter briefly discusses the gay rights/queer movement, LGBTQ+/Queer studies, and queer theory. It reviews the concept of LGBTQ+ and the status of LGBTQ+/sexual minorities under international and regional human rights law. In particular, rights related to transgender people and intersex people, and the issue of same-sex marriage are explored in the regional contexts.
In 2017, the Taiwanese Constitutional Court handed down Judicial Yuan Interpretation No. 748, which was a ruling in favour of same-sex marriage. The Court also ordered the national legislature to amend the law within two years. Despite a significant backslide in the Taiwanese 2018 referendum, the legislature eventually followed the Court’s order and legalized gay marriage in 2019. This victory made Taiwan the first state to legalize same-sex marriage in Asia. Many legal scholars consider the same-sex marriage ruling a progressive decision in which the Court undertook a counter-majoritarian task of protecting a minority group. While we agree with the Court’s role in promoting marriage equality, we contend that most legal scholars overlook an important question in this dynamic: the legislature had had several chances to settle this issue over the past decades, so why did it refuse to draft gay-marriage legislation but later, in 2019, defer to the Court’s decision? In this paper, we explain the political foundations of an activist judiciary by using the case of the first gay-marriage legislation in Asia. We argue that the risk of position-taking on tough issues leads incentive-facing political elites to engage in position avoidance and to see the political value in deferring to a high court’s ruling. Using original data, we present evidence of how Taiwan’s diverse constituency relative to the same-sex marriage issue influenced legislators’ position-avoidance behaviour and led them to dodge political backfire by delegating policy-making authority to the Constitutional Court.
The first section of this Element reviews the history of LGBTQ rights in the region since the 1960s. The second section reviews explanations for the expansion of rights and setbacks, especially since the mid 2000s. Explanations are organized according to three themes: (1) the (re-)emergence of a religious cleavage; (2) the role of political institutions such as presidential leadership, political parties, federalism, courts, and transnational forces; and (3) the role of social movement strategies, and especially, unity. The last section compares the progress on LGBTQ rights (significant) with reproductive rights (insignificant). This Element concludes with an overview of the causes and possible future direction of the current backlash against LGBTQ rights.
In November 2020, the Appellate Tribunal (the Tribunal) of the Anglican Church of Australia (ACA) provided its opinion on references as to the constitutionality of diocesan legislation relating to same-sex blessings and marriage. There were two concurrent references about a marriage blessing service intended for use in the Diocese of Wangaratta (the Wangaratta references). There were also two concurrent references about the Clergy Discipline Ordinance 2019 Amending Ordinance 2019 of the Diocese of Newcastle (the Newcastle references).