Transcript UCU LGBT History Month Conference

Gay and Lesbian Law Reform:
The Politics of Progress
Daniel Monk
School of Law, Birkbeck
Institute of Gender and Sexuality
University of London
‘The Love that Dare Not Speak Its
Name’
Oscar Wilde on being released
from Reading Gaol in 1897:
“Yes, we will win in
the end; but the
road will be long
and red with
monstrous
martyrdoms”.
From decriminalisation to marriage
...
* Sexual Offences Act 1967
- decriminalised homosexual acts in private
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Sexual Offences Act 2000
- equalized age of consent at 16
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Adoption and Children Act 2002
- permits same sex couples to adopt
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Sexual Offences (Amendment) Act 2003
- recognised ‘male rape’; repealed ‘gross indecency’
and ‘buggery’
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Criminal Justice Act 2003
- higher sentencing for homophobic hate crime
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Local Government Act 2003
- repealed Section 28 Local Government Act 1988
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Civil Partnership Act 2004
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Gender Recognition Act 2004
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Human Fertilisation & Embryology Act 2008
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Equality Act 2010
- goods and service provision
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Marriage (Same Sex Couples) Act 2013
Judicial activity . . .
Ghaidan v Mendoza [2004] UKHL 30
Recognition of gay partners as ‘spouses’
Hale: ‘a guarantee of equal treatment is also essential
to democracy’
HJ (Iran) and HT (Cameroon) v Secretary of State for the
Home Department [2010] UKSC 31
Rogers: ‘[To] reject his application on the ground that
he could avoid the persecution by living discreetly
would be to defeat the very right the convention exists
to protect – his right to live freely and openly as a gay
man without fear of persecution’
‘Responsible citizenship’?
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Didi Herman:
‘the extension of existing liberal
categories to “new identities” not
only “recognizes”, but regulates,
contains, and constitutes them’
Children, families . . and sexuality
The Bad Old Days . . .
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Re D (An Infant) Adoption: Parents
Consent) 1977 AC 602, House of Lords
"A reasonable man would say, 'I must
protect my boy, even if it means parting
from him for ever so that he can be free
from this danger. It follows that this is
not a case of a rare incident of
misconduct or criminality. The father has
nothing to offer his son at any time in the
future."
Queer Families . . . ?
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Re G (Children) (Residence: Same-sex
Partner) [2006] UKHL 43
- Significance of being the ‘biological’
mother
Re D (Contact and Parental Responsibility:
Lesbian Mothers and
Known Father) [2006]
EWHC 2
- ‘nuclear family’ v
father
Privatising care . . . ?
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If everyone can now be in a
family, and if families are the
foundation for a healthy society,
then it becomes all too easy for
‘can’ to become ‘should’
Alison Diduck (2005)
EDUCATION . . .
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Section 28, Local Government Act 1988
Local Authorities shall not ‘promote the
teaching in any maintained school of the
acceptability of homosexuality as a
pretended family relationship’
Conservative/Lib Dem Coalition Agreement
2010
‘We shall help schools to tackle bullying,
especially homophobic bullying’
‘silencing’ . . ‘good victims’?
Equality = Sameness?
Going on the Attack!
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McFarlane v Relate Avon Ltd [2010] EWCA
Civ 880
Laws LJ: We do not live in a society where
all the people share uniform religious
beliefs. The precepts of any one religion –
any belief system – cannot, by force of
their religious origins, sound any louder in
the general law than the precepts of any
other. If they did, those out in the cold
would be less than citizens; and our
constitution would be on the way to a
theocracy, which is of necessity autocratic.
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Ladele v London Borough of Islington [2010] 1 WLR
955 – refusal to register civil partnerships
R (Eunice Johns and Owen Johns) v Derby City
Council and Equality and Human Rights Commission
[2011] EWHC 375 (Admin) - fostering
Bull & Bull v Hall & Preddy [2012] EWCA Civ 83 –
refusal to accommodate in B&B
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Catholic Care (Diocese of Leeds) v Charity
Commission of England and Wales [2012] UKUT 395
– adoption agencies compliance with anti-discrimination
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Black and Morgan v Wilkinson [2013] EWCA Civ 820
– refusal to accommodate in B & B
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Eweida and others v UK [2013] ECHR 37
McFarlane in Strasbourg)
(Ladele and
Hate Crime . .
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‘What kind of attachments to unfreedom can be discerned
in contemporary political formations ostensibly concerned
with emancipation’?
Wendy Brown, 1993
‘Violence is transposed onto
these marginal spaces in a
discursive shift that empties
middle class life of any
accountability’
Les Moran, 2005
References . . .
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Wendy Brown (1995) States of Injury: Power and Freedom in Late Modernity,
Princeton, NJ: Princeton University Press.
Alison Diduck (2005) ‘Shifting Familiarity’ 58 Current Legal Problems 234-254
Didi Herman (1993) ‘The Politics of Law Reform: Lesbian and Gay Rights into the
1990s’ in J. Bristow and A.R. Wilson (eds) Activiating Theory: Lesbian, Gay, Bisexual
Politics, pp.246–63. London: Lawrence and Wishart
Julie McCandless and Sheldon, S. (2010) ‘The Human Fertilisation and Embryology Act
(2008) and the tenacity of the sexual family form’, Modern Law Review, 73(2): 175–
207.
Daniel Monk (2011) ‘Challenging Homophobic Bulling in Schools: The Politics of
Progress’ International Journal of Law in Context 7(2): 181-207
Les Moran (2001) 'Affairs of the heart: hate crime and the politics of crime control’,
12(3) Law and Critique 331-344
Christine Piper (2000) in Heinze E (ed) Of Innocence and Autonomy: Children, Sex and
Human Rights
Carl Stychin (2006) ‘Family friendly? Rights, responsibilities and relationship
recognition’, in A. Diduck and K. O’Donovan (eds) Feminist Perspectives on Family Law,
London: Routledge-Cavendish.