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Where Does the Rainbow Shine Brightest? Comparing the Legal Status of LGBT People in Europe and the United States Today

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This article is part of our Over the European Rainbow feature.

DC Capital Pride Parade 2012. Credit: thisisbossi

by Michael Stambolis-Ruhstorfer

June has come to be recognized as “Pride Month” – a time during which LGBT pride parades and festivals take place in many countries – and this year observers and celebrants are taking stock again. For example, United States (US) President Barack Obama, in an official presidential proclamation declaring June 2014 as “Lesbian, Gay, Bisexual, and Transgender Pride Month,” praised recent state and federal court rulings allowing same-sex couples to marry but warned that inequalities persist both in the US and abroad.[1] To promote more legal advances, on the forty-fifth anniversary of the Stonewall uprisings he asks that we emulate “every brave leader who stood up, sat in, and came out, as well as the allies who supported them along the way.” Appealing to the now classic idea that knowing an LGBT person has the strongest impact on legal change – known as the “contact hypothesis” (Garner 2013) and made famous by activists like Harvey Milk – Obama argues that “if hearts and minds continue to change over time, laws will too.” This declaration recognizes the continued legal inequalities that sexual and gender minorities face in the US and the complex relationship between attitudes and social change.

In Europe, Pride month has also been the occasion, on the one had, for advocates to celebrate the advances achieved in gay rights across the continent, and, on the other, to push for increased rights and protections in the many areas they deem lacking. The articles in this special forum make a timely contribution to our understanding of the state of affairs in Europe and offer suggestions about directions for the future. They attest to the many policy arenas in Europe where sexual and gender minorities continue to face active discrimination, social ostracization, and political backlash. One of the most marked characteristics of the current European political moment on these issues is heightened polarization both across the continent and within specific countries. Moreover, although public opinion, at least in some locations, is gradually becoming more supportive of sexual and gender minorities, opponents to legal equality are increasingly vocal and organized. The insights of these articles, as well as the somewhat surprising speed of change in US marriage law suggest several further questions: How does the situation in the US compare with that of Europe? What should we keep in mind as we think about the trajectories of LGBT issues in both contexts?

 

Variability within Europe and the US

Because of the complex patchwork of legal institutions and the effects of community characteristics like urbanization, religiosity, level of education, and political ideology, LGBT people in the US, like their European peers, face markedly different legal and social circumstances depending on where they live. Similar to Europe, the legal and jurisdictional structures of the US create a mix of legal situations that can vary widely across states and complicate federal oversight. For instance, states define their own laws with regard to parenting and adoption rights, marriage, workplace discrimination, and definitions of hate crimes. Yet many of these issues also raise some questions over which the federal government has jurisdiction, such as immigration privileges for married couples or how federal police investigate hate crimes. As a result, generalizations about the status of sexual and gender minorities in the US must be as nuanced as those about Europe.


Patterns of legal reform in both contexts

Recently, reform in some policy arenas across states and federally has been swift. The past few years have seen the very rapid expansion of legal rulings in favor of marriage for same-sex couples. In spring 2013, only six states and the District of Columbia recognized marriage for same-sex couples.[2] Then, in June of the same year, in two rulings, the US Supreme Court 1) struck down part of the 1996 Defense of Marriage Act that restricted all federal marriage rights and responsibilities to different-sex couples, and 2) overturned California’s state referendum prohibiting same-sex couples to marry, in the cases of U.S. v. Windsor [3] and Hollingsworth v. Perry,[4] respectively. As of the end of June, every remaining state has an active legal suit challenging state laws or constitutional amendments that currently ban such unions (Associated Press 2014). Unlike the European Court of Human Rights, the US Supreme Court has the power to require individual states to implement its rulings. Thus, a ruling on one of these cases, which the court is likely to hear relatively quickly given the number of legal challenges, has the potential to legalize marriage for same-sex couples across the country. Current European legal and political mechanisms make such sweeping change unlikely in the near future.

Patterns of laws banning labor discrimination on the basis of sexual orientation and gender identity differ between the European Union (EU) and the US. The EU’s Employment Equality Directive (2000/78/EC) requires that member states ban workplace discrimination based on sexual orientation, while more recent directives address gender identity. Specific policy implementation, however, varies by country (Waaldijk and Bonini-Baraldi 2006). Some countries can therefore pass legislation that leads to few substantive outcomes. In the US, efforts to address discrimination are less widespread. Eighteen states and the District of Colombia prohibit discrimination on the basis of sexual orientation and gender identity, and three additional states only address sexual orientation discrimination.[5] In the remaining states, employers can fire or refuse to hire people because of their actual or perceived sexual orientation or gender identity. Passage of federal law requiring such protections would remedy the situation, but despite the introduction of such protections in the form of the Employment Non-Discrimination Act (ENDA) in each session of Congress since 1995, the measure has always failed. President Obama has announced that he will use his authority to sign an executive order to ban employment discrimination for companies contracting with the federal government. However, an executive order could be rescinded by a future administration and, even if it were not, its effects do not extend to all employees.


The impact of legal institutions and jurisdictional structures

As we think about the situation across contexts, there are some institutional, political, and cultural characteristics of the US that can help us understand some of the patterns we observe. As stated earlier, the political and legal institutional structures in the US and Europe resemble each other in many ways, but the different jurisdictional domains and enforcement power accorded to states versus federal institutions in the US and countries versus supranational institutions in Europe impact how legal reform progresses. In addition to jurisdictional layers, the specific institutional avenues through which reforms pass – through courts or legislatures, for example – also influence the speed of change, the nature of debates, and the scope and content of decisions (Smith 2008; Tremblay, Paternotte, and Johnson 2011). Differences in institutional avenue do not necessarily break down along US/European lines. Rather, efforts to address specific social questions, from marriage and parenting to hate-crimes and bullying, can take different institutional paths depending on country, state, and time period. Nevertheless, to get a clear picture of the status of gender and sexual minorities, it is useful to pay attention to the ways in which jurisdictional layers and institutional paths interact on both sides of the Atlantic.

Marriage Equality Rally May 16, 2009. Credit: Donald and Cameron

The private sector as political actor in the US

Another factor that seems particularly salient for understanding the US is the importance of the private sector and market influences in the framing and impetus in efforts to address LGBT issues. For example, many companies make the argument that workplace discrimination is bad for business and incorporate anti-discrimination policies into their internal regulations or offer spousal health-care coverage to the same-sex partners of their employees. They also take official stances on other issues, such as statements of support for opening marriage to same-sex couples. In so doing, these businesses, along with advocacy organizations like the Human Rights Campaign that rank companies through mechanisms such as the Corporate Equality Index, attempt to create an environment that favors certain LGBT rights.[6] Indeed, people can use such tools as leverage to make their own employers change their policies and/or participate in national legal debates. Such tactics are not without their critics, of course, who denounce a neo-liberal cooptation of the LGBT rights movement (Duggan 2002).

More recently, owners of corporations on the other side of the debate, such as Dan Cathy, president of a large fast food chain, have publicly opposed marriage for same-sex couples and say that their businesses reflect their Christian values (Severson 2012). They argue these legal changes would require them to engage in practices – such as recognize the marriages of their employees – that go against their faith. While it is difficult to empirically evaluate the impact of these private-sector factors on legislative and judicial action, the practices and stances of businesses in the US have undoubtedly shaped the way the debate is discussed and, in some cases, have had a concrete effect on the situations of their employees. In Europe, it appears that businesses, at least anecdotally, are less publicly present in these debates. This may be due to the larger role of the state in Europe more generally.


Religious exceptions: New tactics from familiar sources 

In the face of increased recognition and protections for LGBT individuals and same-sex couples, the familiar religiously motivated resistance to such changes has adopted a new legal strategy in the US. Specifically, lawyers and activists argue that legal recognition of same-sex couples, anti-discrimination laws in the workplace, or policies against bullying all infringe upon their right to freedom of expression and religious liberty. Rather than draw on religious arguments to prevent passage of new laws – though that is still common – opponents now face a field in which many laws have already passed. They therefore argue that, because of their deeply held beliefs, they should be given special exemptions from these legislations. Some widely publicized cases include wedding photographers and bakers who argue that they should have the right to deny their commercial services to customers, like same-sex couples, whose lives and practices go against their faith (Chappell 2014). The idea of religious exemptions has gained traction in some states, such as Arizona and Kansas, where legislation is under consideration to enshrine the principle that deeply healed religious beliefs are grounds that justify denial of service (Paulson and Santos 2014).

Supporters of such religious protections are becoming increasingly vocal and making an impact on current executive and legislative reforms. For example, at the same time that he announced he would extend anti-discrimination policies to federal contractors, President Obama also said he would consider exempting religious and non-profit organizations (Eidelson 2014). Similarly, legislators are considering adding new religious exception language to the current iteration of the ENDA bill in congress, promoting some LGBT organizations to drop their support (Duffy 2014). Given the way the notion of religious freedom – as represented in the First Amendment of the US Constitution – has been interpreted in the US, religious organizations and people have a legal argument that could allow religious exemptions to gain even more traction in the future.

As other articles in this special forum have shown, religiously motivated opposition to legal reform is not absent in Europe and appears to be increasingly visible. The religious liberty argument has been made in similar ways there. In the United Kingdom (UK), for example, in a suit brought by a same-sex couple turned away from a bed and breakfast, the Christian owners argued that serving the clients was not discrimination but a “religiously-informed judgment of conscience” (Pigott 2013). Their claim, however, did not ultimately sway the UK Supreme Court. As such arguments are made on both sides of the Atlantic, it will be important to observe how competing claims in the name of religion on one side and human rights on the other play out in specific local and national contexts.

 

Why the situation of sexual and gender minorities matters

The above comparison suggests that, broadly speaking, the two contexts resemble each other. They are marked by a broad diversity of circumstances that depend on the particular overlap of national/supranational laws in Europe and state/federal laws in the US. Yet, each specific legal question – from the right of transgender people to change their legal sex, to the possibility of same-sex couples to wed, or prohibition of discrimination on the basis of sexual orientation and gender identity – takes a specific path according to the particular institutional, political, historical, and social movement circumstances under which it is addressed. As a result, rapid and broad legal changes may occur for some legal questions in one context and not the other. Understanding why, therefore, requires a nuanced and contextualized analysis that goes far beyond the simple idea that one or the other context is more ‘advanced’.

The social acceptance and legal status of LGBT people and other individuals outside of heterosexual and gender norms deserves our attention. These questions are often times relegated to secondary or trivial status in public and academic discourse on the politics, history, and culture of Europe and the US. The discussion above, however, demonstrates that LGBT issues can be a powerful tool for exploring larger political processes and institutional dynamics within and across Europe and the US; these observations can help us analyze any number of other legal and social questions. Moreover, as social phenomena, gender and sexuality are uniquely placed at the nexus of key concerns that animate democratic ideals on both sides of the Atlantic: freedom of expression and conscience, the right to a family life, bodily and intellectual integrity, and privacy. Going forward, it will become increasingly important to observe how the expansion of legal recognition and protections for LGBT people triggers competing rights claims from other groups, such as those based on religion or ethnicity. The response of communities and governments to sexual and gender minorities gives us insight into how they grapple with these fundamental democratic issues.

 

Michael Stambolis-Ruhstorfer is a doctoral candidate in the Sociology Department at the University of California Los Angeles. His dissertation compares the role of experts and the use of expertise in legal debates on marriage and parenting rights for same-sex couples in France and the United States. His other research, exploring the relationship between sexual identity and national political context, was recently published in the American Journal of Cultural Sociology.

This article is part of our Over the European Rainbow feature.


References

Associated Press. 2014. “Gay Marriage Legal Challenges: Where Things Stand.” The Washington Post, June 25. <www.washingtonpost.com/national/a-look-at-gay-marriage-legal-challenges-across-us/2014/06/25/a2e925aa-fc8f-11e3-9b05-7ec49dc09d97_story.html>.

Chappell, Bill. 2014. “Supreme Court Rejects Gay Wedding Photography Case.” NPR.org. <www.npr.org/blogs/thetwo-way/2014/04/07/300256656/supreme-court-rejects-wedding-photographers-case>.

Duffy, Nick. 2014. “US: LGBT Groups Drop Support of Anti-discrimination Law ENDA over ‘religious Freedom’ Exemption.” PinkNews.co.uk. <www.pinknews.co.uk/2014/06/14/us-lgbt-groups-drop-support-of-anti-discrimination-law-enda-over-religious-freedom-exemption/>.

Duggan, Lisa. 2002. “The New Homonormativity: The Sexual Politics of Neoliberalism.” In Materializing Democracy: Toward a Revitalized Cultural Politics, edited by Russ Castronovo and Dana D. Nelson, 175–94. Durham, NC: Duke University Press.

Eidelson, Josh. 2014. “Obama’s Order Against Antigay Discrimination Revives a Familiar Religious Freedom Fight.” BusinessWeek, June 18. <www.businessweek.com/articles/2014-06-18/obamas-anti-gay-discrimination-order-revives-a-familar-religious-freedom-fight>.

Garner, Andrew. 2013. “Ambivalence, the Intergroup Contact Hypothesis, and Attitudes About Gay Rights.” Politics & Policy 41(2): 241–66. doi:10.1111/polp.12010.

Paulson, Michael, and Fernanda Santos. 2014. “Religious Right in Arizona Cheers Bill Allowing Businesses to Refuse to Serve Gays.” The New York Times, February 21. <www.nytimes.com/2014/02/22/us/religious-right-in-arizona-cheers-bill-allowing-businesses-to-refuse-to-serve-gays.html>.

Pigott, Robert. 2013. “Gay Snub B&B Owners Lose Appeal.” BBC News. <www.bbc.com/news/uk-england-25119158>.

Severson, Kim. 2012. “Gay Rights Uproar Over Chick-fil-A Widens.” The New York Times, July 25. <www.nytimes.com/2012/07/26/us/gay-rights-uproar-over-chick-fil-a-widens.html>.

Smith, Miriam. 2008. Political Institutions and Lesbian and Gay Rights in the United States and Canada. New York: Taylor & Francis.

Tremblay, Manon, David Paternotte, and Carol Johnson. 2011. The Lesbian and Gay Movement and the State: Comparative Insights into a Transformative Relationship. Burlington, VT: Ashgate.

Waaldijk, C., and M. T. Bonini-Baraldi. 2006. Sexual Orientation Discrimination in the European Union: National Laws and the Employment Equality Directive. The Hague: T.M.C. Asser Press. <https://openaccess.leidenuniv.nl/handle/1887/16528>.


[2] For an interactive timeline, see: <http://gregstoll.dyndns.org/marriagemap/>.

[3] United States v. Windsor, 570 U.S. 12 (2013) (Docket No. 12-307).

[4] Hollingsworth v. Perry 570 U.S. 12 (2013) (Docket No. 12-144).

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