Abstract
European Union (EU) citizenship is not only a unique space for ‘overcoming’ nationality, often imagined in terms of the dominant ethnicity of member states (Kochenov 2010a). EU citizenship equally offers an activist arena for challenging sexual identities and inequalities embedded in those national citizenships, transnationalizing discourse on rights and gay emancipation in Central and Eastern Europe as a matter of EU law. European, in this context, becomes a language of rights and entitlements, which can be turned, inter alia, against their own states of nationality. On the one hand, transnational forms of citizenship facilitate the very dialogue on sexual rights among member states and problematize the construction of fixed identities (Belavusau 2015a, in press). On the other hand, EU citizenship is equally a realm of disciplining humiliation of member states (Davies 2010). The rhetoric of ‘socially unfruitful’ homosexuality and the prescription of women’s reproductive role have been particularly visible in nationalist projects with ethno-centric views on group boundaries and longevity (Yuval-Davis 1997). The Union instead offers value models for anti-discrimination developments beyond the ‘population’ narrative of—largely patriarchal and heteronormative—national citizenships. Although not always legally enforceable due to the limited possibilities for harmonization and Union action, transnational and national lesbian, gay, bisexual, and transgender (LGBT) movements can capitalize on value models as a matter of EU federalism for lobbying just causes. The recent judgment of the US Supreme Court in Obergefell v. Hodges (2015) is an example of a federal opportunity for gays and lesbians—a legal track that sooner or later will be explored by the cause lawyers in Europe.
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Notes
- 1.
Part of this chapter is based on the argument substantially developed in this earlier article.
- 2.
Federalism as referred to here should be understood as operating on the level of national member states, the European Union, and the Council of Europe.
- 3.
Arts 20 and 21 TFEU. The concept of the exit option will be further detailed below.
- 4.
All EU Member States are also Members of the Council of Europe. Art. 6 TEU stipulates that the Union is bound by fundamental rights as reflected in the European Convention of Human Rights and undertakes to accede this Convention. This creates a unique symbiosis of the two organizations: EU and CoE.
- 5.
For an overview of numerous cases on gay rights at the Court in Strasbourg, see Johnson (2014).
- 6.
According to Art. 5 TEU, the EU can only act ‘within the limits of the powers conferred upon it by the Treaties’.
- 7.
- 8.
Art. 21 TFEU.
- 9.
See Council Directive No. 2004/38, Art. 24.
- 10.
- 11.
- 12.
This loosely compares to the US principle that the states are not free to choose their citizens. The same does not apply to the instances when the Member States apply EU and their own law in admitting new immigrants, which also affects third country nationals residing in the EU: the Union as a single working-living space does not exist for them (Kochenov and van den Brink 2015).
- 13.
The ECJ has a rich history of articulating EU legal terminology, e.g. ‘worker’ or ‘the court or tribunal of the Member States’, as much broader than the national definitions available in the legal systems of the Member States.
- 14.
The latest addition to the fine-tuning of mutual recognition is the clarity with which the ECJ spelled out the obligation, lying on the Member States not to check the presumption that their peers adhere to fundamental rights: for a critical analysis, see Kochenov (in press).
- 15.
The principle established by the Singh case (1992) is that a person who moves with a Union citizen from one Member State to another also has a right to return; otherwise, a person would be deterred from moving in the first place. Therefore, it is EU law and not the domestic rules of your own Member State that also applies to family members, even if such family members are not Union citizens themselves.
- 16.
Case C-13/94, P. v. S. and Cornwall County Council, EU:C:1996:170, [1996] ECR I-2143. Another pertinent case in this context is Case C-117/01, K. B. v. National Health Service Pensions Agency and Secretary of State for Health, EU:C:2004:7, [2004] ECR I-541.
- 17.
Discrimination of transsexuals since then has been treated as an aspect of gender equality, as incorporated into Directive 2006/54/EC on equal opportunities and equal treatment of men and women in matters of employment and occupation. In June 2010, the European Parliament adopted a resolution (the ‘Figueiredo report’) calling for an inclusive EU gender equality strategy, specifically addressing issues linked to gender identity: European Parliament, ‘Report on the assessment of the results of the 2006–2010 Roadmap for Equality between women and men, and forward-looking recommendations’, 2009/2242(INI) (Committee on Women’s Rights and Gender Equality, Rapporteur: Ilda Figueiredo, 12 May 2010).
- 18.
Obviously, this statement is subject to a disclaimer about the liquidity of the concept of homosexuality, as introduced not earlier than the nineteenth century. Ancient Greek citizenship, in contrast, fostered an alternative view on sexuality and the role of man-to-man relations that could hardly be regarded as discriminatory in contemporary terms. See Cohen (2004).
- 19.
Also see a soon-to-appear Kochenov reply in the same journal.
- 20.
- 21.
In this regard, see the recent ECJ Case on blood donation by men who have sex with men, C-528/13 Léger [2015], echoing the most outdated perceptions of homosexuality as a health-threatening issue. For a commentary, see Belavusau and Isailović (2015).
- 22.
Case 249/96, Lisa Jacqueline Grant v. South-West Trains Ltd., EU:C:1998:63, [1998] ECR I-621; Case 122/99, D. and Kingdom of Sweden v. Council of the European Union, EU:C:2001, [2001] ECR I-4319; Case 117/01, K.B. v. National Health Service Pensions Agency and Secretary of State for Health, EU:C:2004, [2004] ECR I-541. About the defeat of the earlier cases, see Beger (2000). For a convincing argument that there is no logical reason to distinguish sex discrimination from discrimination on the basis of sexual orientation, see Koppelman (2001).
- 23.
As will be demonstrated below in the context of the ‘Citizenship Directive’ and the case law of the ECJ, it is quite wrong to keep assuming that EU law does not regulate family matters. For a convincing rebuttal of this erroneous claim, see Stalford (2012, p. 223). The idea that family matters are completely excluded from EU regulation is often drawn from Rec. 22 of the Preamble to Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ 2000 No. L303/16, as well as from the ECJ cases, like the recent Case C-147/08, Jürgen Römer v. Freie und Hansestadt Hamburg, EU:C:2011:286, [2011] ECR I-3591, para 38: ‘As a preliminary point, it should be observed that, as EU law stands at present, legislation on the marital status of persons falls within the competence of the Member States’.
- 24.
- 25.
E.g. Toonen v. Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994); Young v. Australia, Merits, Communication No 941/2000, UN Doc CCPR/C/78/D/941/2000, (2003) 5 IHRR 747, IHRL 1921 (UNHRC 2003), 6 August 2003, Human Rights Committee [UNHRC].
- 26.
Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation.
- 27.
Case C-267/06, Tadao Maruko v. Versorgungstanstalt der deutschen Bühnen, EU:C:2008:179, [2008] ECR I-1757.
- 28.
Arts 20–24 TFEU.
- 29.
Art. 21 of the CFR stipulates a general prohibition of discrimination, based on sexual orientation. Its Arts. 7 (respect for private and family life) and 9 (right to marry and right to found a family) both employ gender-neutral language for ‘family’, unlike some outdated national constitutions specifying that family is a union of a man and a woman, e.g. the current interpretation of Art. 6 in the German Grundgesetz. For discussion, see Sanders (2012).
- 30.
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ 2004 No. L158/77.
- 31.
Art. 2(2) Directive 2004/38 on the right of citizens of the Union, OJ 2004 No. L158/77 states: ‘“family member” means the spouse’. Rec. 3 of the Preamble to the Directive is even more explicit: ‘Member States should implement this Directive without discrimination between the beneficiaries of this Directive on grounds such as […] sexual orientation’.
- 32.
- 33.
Wider aspects of residence are regulated in Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ 2003 No. L251/12.
- 34.
Protocol 30 on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom 2007, OJ 2012 No. C326/313.
- 35.
Declaration No. 61 by the Republic of Poland on the Charter of Fundamental Rights of the European Union, OJ 2012 No. C326/360: ‘The Charter does not affect in any way the right of Member States to legislate in the sphere of public morality, family law, as well as the protection of human dignity and respect for human physical and moral integrity’.
- 36.
The concept of alternative forms of intimacy (especially among gays and lesbians), which is often missing in the heteronormative vision of equality, was advanced by Giddens (1992).
- 37.
Case C-81/12, Asociaţia ACCEPT v. Consiliul Naţional pentru Combaterea Discriminării, EU:C:2013:275. For an extensive comment on the case, see Belavusau (2015b).
- 38.
Art. 9(2) Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ 2000 No. L303/16.
- 39.
For reports of ACCEPT, see http://accept-romania.ro/publicatii/.
- 40.
In the literature, a vast number of alternative terminology is used to address cause lawyers, including social justice lawyers, public interest lawyers, rebellious lawyers, progressive lawyers, equal justice lawyers, critical lawyers, etc. Driven by altruism, empathy, self-interest, mixed motives, such lawyers advocate for a social cause rather than for a corporate interest or protection of individual concerns. For various accounts, see Sarat and Scheingold (1990). In the context of LGBT activism, see Cummings and NeJaime (2010).
- 41.
Currently, European Women’s Lobby (EWL) is the largest umbrella organization of women’s associations in the EU. EWL membership extends to all 28 Member States.
- 42.
Regarding the low legal and political EU-opportunities for gay activists in the 1990s, see Hilson (2002, pp. 248–249).
- 43.
- 44.
Or, put differently, ‘[m]easured against the freedom of intimate association, any governmental intrusion on personal choice of living arrangements demands substantial justification, in proportion to its likely influence in forcing people out of one form of intimate association and into another’ (Karst 1980, p. 687).
- 45.
The need for the state of Hawaii to justify its policy of exclusion of same-sex couples from access to marriage was at the bottom-line the Hawaii Supreme Court case of Baehr v. Lewin, 852 P.2d 44, 74 (Haw. 1993). The Hawaii Circuit Court then held that the State failed to meet the strict standard with the policy justifications it provided. See Baehr v. Miike, No. 91–1394, 1996 WL 694235, at *21 (Haw. Cir. Ct. Dec. 3, 1996). For the analysis of other relevant cases decided by the US state courts; see for example, Inching Down the Aisle (Anon 2003).
- 46.
See Zablocki v. Redhail, 434 U.S. 374, 399 (1978) (Powell, J., concurring); see also Karst (1980, pp. 670–671).
- 47.
- 48.
Such public policy would be in manifest disagreement with the principles on which the Union is founded and used to limit free movement of persons, will amount to the violation of the duty of loyalty. Moreover, rather than disqualifying classes of citizens from moving into a particular Member State, public policy exceptions are to be grounded in personal conduct. See e.g. Council Directive No. 2004/38, Art. 27(20).
- 49.
The Polish Declaration on family is manifestly useless in this context, since it cannot possibly justify derogations from EU citizenship and internal market provisions in the Treaties and in secondary law.
- 50.
In citizenship studies, ‘vertical’ is sometimes understood as relationship between citizen and state, while ‘horizontal’ absorbs relationship among citizens developing a community with shared loyalties and character. For the purposes of this chapter, ‘vertical opportunities’ refer to EU claims while ‘horizontal opportunities’ describe cause lawyering based on national legal system(s).
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Belavusau, U., Kochenov, D. (2016). Federalizing Legal Opportunities for LGBT Movements in the Growing EU. In: Slootmaeckers, K., Touquet, H., Vermeersch, P. (eds) The EU Enlargement and Gay Politics. Gender and Politics. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-48093-4_4
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