Confronting Homophobia in Europe

Social and Legal Perspectives

Luca Trappolin, Alessandro Gasparini, Robert Wintemute, Luca Trappolin, Alessandro Gasparini, Robert Wintemute

• Publisher: Hart Publishing
• Year: 2011
• ISBN:
  9781847318282
• Edition: 1
• Topic: Derecho
• Subtopic: Derechos civiles en la legislación

Homophobia exists in many different forms across Europe. Member States offer uneven levels of legal protection for lesbian and gay rights; at the same time the social meanings and practices relating to homosexuality are culturally distinct and intersect in complex ways with gender, class and ethnicity in different national contexts. The essays in this volume illustrate the findings of a European project on homophobia and fundamental rights in which sociologists and legal experts have analysed the position in four Member States: Italy, Slovenia, Hungary and the UK. The first part of the book investigates the sociological dimensions of homophobia through qualitative methods involving both heterosexual and self-defined lesbian and gay respondents, including those in ethnic communities. The aim is to understand how homophobia and homosexuality are defined and experienced in the everyday life of participants. The second part is devoted to a legal analysis of how homophobia is reproduced 'in law' and how it is confronted 'with law'. The analysis examines statute and case law; 'soft law'; administrative practices; the discussion of bills within parliamentary committees; and decisions of public authorities. Among the areas discussed are 'hate crimes' and 'hate speech'; education at all levels; free movement, immigration and asylum; and cross-border reproductive services.
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1

Introduction

LUCA TRAPPOLIN AND ALESSANDRO GASPARINI

How can we widen our understanding of homophobia? This is the main question this volume seeks to answer. It presents the findings of a comparative research study on homophobia and fundamental rights in four European countries, where discrimination and hostility against lesbian and gay people have different quantitative and qualitative features. The analysis included in this book was derived from the project Citizens in Diversity: A Four Nation Study on Homophobia and Fundamental Rights, which was co-funded by the European Union within the Fundamental Rights and Citizenship programme (Directorate-General Justice, Freedom and Security) for the years 2010–11.

The project involved sociologists and legal experts from Italy, Slovenia, Hungary and the United Kingdom with the aim of better understanding homophobia and discrimination against lesbians and gays at the national level, and promoting their fundamental rights in the European context. The Department of Sociology at the University of Padova (Italy) coordinated the activities in the four countries. The partners in the project were the Municipality of Venice (Italy), the European Study Centre on Discrimination (Centro Europeo Studi sulla Discriminazione) in Bologna (Italy), the Peace Institute in Ljubljana (Slovenia), the Institute of Sociology of the Hungarian Academy of Sciences in Budapest, and the School of Sociology and Social Policy at the University of Nottingham (UK).

Considered as a whole, the chapters of this book pursue the aim of widening the understanding of homophobia by investigating three analytical dimensions:

(i) the cultural and institutional definitions of homophobia and, more broadly, discrimination and hostility against lesbian and gay people, which are embedded in social representations of women and men of different social groups (self-defined heterosexuals, self-defined lesbians and gays, members of ethnic minorities), as well as in the legal systems of the involved Member States;

(ii) the actual experiences of such phenomena in the everyday lives of women and men of different social groups (self-defined heterosexuals, self-defined lesbians and gays, members of ethnic minorities) and in cases in national courts;

(iii) the strategies of resistance to homophobia and discrimination which come to light in the social practices of women and men of different social groups, and the strategies of opposition which can be seen in the legal system and/or derive from its operation.

Overviews of the investigation of these three dimensions are presented in chapter two for the sociological analysis, and in chapter seven for the legal analysis, while more comprehensive information about the results of the research are included in the chapters devoted to the sociological and legal analysis of each country. In the next few pages of this Introduction, we shall briefly contextualise our approach within the international sociological debate on homophobia and the legal discussion on the protection of lesbian and gay rights. At the same time, we will provide some information about the specificities of the diverse national contexts.

1. Exposing and Opposing Homophobia in Society

Until the 1960s, in Western societies, hostility towards homosexuality was not understood as a problem to be combated or opposed, or even to be publicly discussed. Homosexuality—rather than the negative social reaction to it—was itself perceived as the problem to be confronted. Then, something happened. Lesbian and gay people began to come out of their closets, to organise themselves as a social movement—which now has a worldwide dimension (Adam, Duyvendak and Krouwel 1999)—and to challenge the shared beliefs, social practices and institutional mechanisms which support their subordination. The public emergence of distinct lesbian and gay voices occurred at different times and took diverse forms in the four countries involved in the research: it is deeply rooted in the social history of the UK (Greenberg 1988; Weeks 1979), but did not begin until the early 1970s in Italy (Nardi 1998; Trappolin 2004), and some 15 years later in Slovenia and Hungary (Kuhar and Takács 2007; Long 1999; see also chapters four and five in this volume). Despite its different national paths, lesbian and gay mobilisation has been crucial in all countries in turning the definition of the problem related to homosexuality upside down.

The concept of homophobia played a significant role within these revolutionary changes. The idea that distress over homosexuality is unwarranted and socially damaging emerged in the late 1960s and the early 1970s, as the result of the criticism some psychologists and psychiatrists expressed about the medicalisation of homosexuality, and its consequent interpretation as a mental disorder. As George Weinberg wrote in the first page of his seminal book Society and the Healthy Homosexual (1972): ‘I would never consider a patient healthy unless he had overcome his prejudice against homosexuality.’ His famous definition of homophobia as ‘the dread of being in close quarters with homosexuals’ came from an interpretation of anti-homosexual hostility as a prejudice, that is, an unfounded judgment or a misconception about the ways homosexuals lead their lives. In order to understand this fear, Weinberg proposed investigating the psychological motives and intra-psychic conflicts which sustain it.

Discomfort about this approach arose soon after its formulation, and by the late 1970s, the need for a ‘better understanding’ of homophobia became relevant for social scientists, although in different ways (Sears 1997).

From the point of view of psychological research, after Weinberg’s work the main problem was that the appropriation of the concept of homophobia by non-professionals—as well as the concept’s easy use by professionals—reduced its scientific clarity. Homophobia became an ‘umbrella under which all negative responses towards homosexuals have been grouped’ (Roderick et al 1998: 80). To maintain the scientific usefulness of the concept, the main response by researchers has been to restrict it to a specific dimension of a broader phenomenon called ‘homonegativism’. Homonegativism has been framed in multidimensional terms as the ‘entire domain or catalogue of anti-gay responses’ (Hudson and Ricketts 1980: 358), and homophobia has been operationalised as the emotional or affective dimension of it, that is, the experience of fear, disgust, anger and discomfort in dealing with lesbian and gay people.

From the point of view of sociological research, the discomfort arising from Weinberg’s definition of homophobia has been more radical. Because it is mainly focused on individuals, it fails to properly consider the structural nature of hostility against homosexuality and homosexual people. Homophobia, it is argued, is not a dysfunctional and pathological attitude which derives from intra-psychic conflicts. It is rather a feature of the very mechanism of social reproduction which constructs homosexuality as a disadvantaged identity—through attitudes, behaviours, practices, symbols and policies—and preserves the dominant position of (heterosexual) men in defining masculinity and the subordinate status of women (Britton 1990; Kimmel 2005; Hamilton 2007). Accordingly, sociologists developed new conceptual tools—some are listed in chapter two—which framed hostility against lesbians and gays in collective and structural terms. Nevertheless, the deployment of the term homophobia has never been completely replaced by alternative terms owing to its popularity and communicative power.

In considering the sociological research as a whole, we can identify two main approaches to studying the societal dimension of homophobia. The first approach is to study the degree of diffusion of bad attitudes and stereotypes towards homosexuality and homosexual people among representative samples of the general population, on the basis of the hypothesis that ‘the treatment of a group is affected by the attitudes held by others about that group’ (Loftus 2001: 763). International surveys carried out by European institutes of research follow this assumption and provide quantitative data permitting a comparison of the situation in different countries. As an example, data from the Eurobarometer surveys allow us to compare Italy, Hungary, Slovenia and the UK in relation to three subject areas. The first is the social visibility of lesbian and gay people and their integration into heterosexual networks (European Commission 2009). In the UK, the percentage of interviewees who state that they have lesbian or gay friends or acquaintances is 56%, hardly similar to the percentage of Italian interviewees (32%), and not at all similar to the percentages of Slovenians (17%) and Hungarians (11%). The second area of comparison is the social acknowledgment of the fact that lesbian and gay people are discriminated against (European Commission 2009). Anti-homosexual discrimination reaches the highest level of social visibility in EU Member States in Italy (61% of Italian interviewees consider this discrimination to be very or fairly widespread in their country), whereas the UK is one of the countries where anti-homosexual discrimination is considered less widespread (40% consider this discrimination very or fairly widespread). Hungary and Slovenia rank in the middle of EU countries, and nearly half of the Hungarian and Slovenian samples consider discrimination against lesbian and gay people as an emerging problem in their societies, because they believe that it is more widespread than it was five years before. The third area of comparison is the pervasiveness of negative attitudes towards lesbians and gays. In the UK (European Commission 2008), interviewees did not commonly express any aversion to having lesbian or gay neighbours: 80% said they would be comfortable with that situation. In contrast, such aversion is more common in Slovenia, where only 62% of interviewees expressed the same attitude, in Italy (44%) and above all in Hungary (35%). Although less generally accepted, responses are similar to the question of having a lesbian or gay man in the highest elected position in the country (European Commission 2009): 58% of the British sample would fully accept this hypothetical situation, whereas only 36% of Slovenians, 27% of Italians and 17% of Hungarians would do so.

A second approach in the sociological analysis of anti-homosexual hostility comes from the qualitative studies on the circulation of discourses on homophobia, and the social effects produced by their deployment in order to stigmatise circumstances, social groups or cultures. This approach does not give the word homophobia a particular meaning. Rather, it investigates homophobia as a ‘discursive resource for individuals and collectivities to … respond to discrimination against gay men and lesbians’ (Bryant and Vidal-Ortiz 2008: 387–88).

To borrow Adam’s argument (1998: 183), discursive analysis of homophobia has two interrelated aims: (i) to identify how discourse produces subjectivity; and (ii) to identify how already constituted actors deploy discourses, adopting some specific frameworks and discrediting others. Both aims can be properly achieved only if the analysis considers the ways in which society reproduces the hegemony of heterosexuality.

With regard to the first aim (how discourses produce subjectivity), examples can be found in the work of scholars such as Mason, Tomsen, Stanko and Curry. Mason (2002) carried out in-depth interviews with lesbian women in order to understand the ways in which their awareness and experiences of ‘heterosexed violence’ construct a system of knowledge which sustains their subordination through an ongoing self-surveillance over their bodies and manners and the self-limitation of social spaces. On the other hand, analysis of antiviolence projects which involve the police (Stanko and Curry 1997), as well as analysis of criminal trials and expert discourses on homophobic hate crimes (Tomsen 2006), show how the protection of victims through a criminological approach reinforces the (heterosexual) expectation that lesbians and gays have to be ‘responsible’ and ‘normal’.

Examples of research inspired by the second aim identified by Adam (how social actors deploy discourses) include ethnographic studies of the deployment of homophobic language in schools (Pascoe 2007), and of the accusation of ‘being homophobic’ among members of multicultural lesbian and gay communities (Vidal-Ortiz 2008), together with qualitative studies which investigate the ways in which lesbian and gay activists frame the problem of violence against them (Jenness and Broad 1994). Considered as a whole, this body of literature shows us that discourses about homophobia can also be investigated as powerful tools in the preservation of the dominant social positions of the ones who deploy them. As Guzmán puts it (2006: 4):

Attribution of homophobia, a technology of homosexual selfhood, is implicated in the maintenance of racial distinctions as it is used in the description of Latinos and other people of colour in a manner that is not commensurate with the actual incidence of homophobia in those communities as opposed to white communities.

The sociological analysis presented in the first part of this volume interprets homophobia as a structural feature of European societies, which reminds lesbians and gays ‘what’ they are—that is subordinated and vulnerable social actors—although it does not automatically dictate ‘who’ they are, that is, how they embody and react to this structural oppression.

On one hand, the comparison between different European countries, the inclusion of ethnic minorities in the comparative design (see chapter six), and the focus on everyday life, certainly help in achieving a better understanding of homophobia, whose shapes and effects depend on cultural and institutional elements of the social context of life, as well as on individual circumstances. On the other hand, the comparison between the experiences and views of members of the hegemonic social group (self-defined heterosexual women and men), and the experiences and views of self-defined lesbian and gay participants, allows us to sharpen the mechanism of symbolic violence (see Bourdieu 1998), which helps to sustain homophobia through the normalisation of homosexuality.

2. Recognising and Combating Homophobia in and with the Law

To discuss homophobia in relation to the legal system can be more difficult than one might think. This is because the relationship between homophobia and law has two aspects: one internal and one external. On one hand, the word ‘homophobia’ (or ‘homophobic’), which is rarely if ever found in a legal text (a statute or regulation), can be used to describe laws and judicial decisions which themselves create unfair discrimination based on sexual orientation. On the other hand, homophobia defines a social phenomenon external to law, which law recognises as a violation of fundamental rights, and seeks to prevent and fight with specific provisions. When we use the term ‘homophobia’ with reference to a legal system, we intend to combine both aspects. We will analyse how the presence or absence of legal rules creates discrimination against people because of their sexual orientation, that is, the law itself is both an example and a cause of the social phenomenon of homophobia (by ‘recognising homophobia in law’). We will also examine the ways in which national legal systems react to the social phenomenon of homophobia (‘combating homophobia with law’).

The four countries included in the study are all EU Member States, but their legal, historical, religious and linguistic-cultural differences permit potentially interesting comparisons. Italy, Slovenia and Hungary have civil law systems, whereas the UK has a common law system. Slovenia and Hungary are ‘post-communist’ societies, whereas Italy and UK have been ‘always capitalist’ since 1945. Italy, Slovenia and Hungary have Roman Catholic majorities, whereas the UK has a Protestant majority. Finally, each country represents a different family of languages: Romance (Italy), Slavic (Slovenia), Uralic (Hungary) and Germanic (the UK). Such different countries display some of the main social and legal diversities of the EU, and appear to be a useful sample of the present situation in national legislation with respect to the fight against discrimination based on sexual orientation.

In order to compare the results of this research (see chapter twelve for the result of this comparison), it has been necessary to look at those systems with the ‘glasses of the comparatist’. This means that every system must be analysed from the point of view of an external and impartial observer, without assuming that concepts belonging to one national system are common and shared. Only from this perspective can it be understood why, even under legal systems such that of the UK, where the legislation on lesbian, gay, bisexual and transgender (LGBT) rights is certainly much more complete and coherent, the social situation is not very different to countries—such as Italy—where no laws have been passed.

This study also attempts to contribute to comparative legal studies on protection against discrimination based on sexual orientation, studies which are in their initial stages. Because of its interdisciplinary dimension, which includes criminal law, administrative law, private law, immigration law, family law, EU law and international human rights law, there are few academic studies that deal with this subject from a truly comparative perspective. Many articles can be found at the national level which concern the recognition of same-sex couples in national law and other aspects of the fight against discrimination based on sexual orientation. However, few authors go beyond this limited dimension and examine the problem as a systemic lack of protection of fundamental rights that is, they do not consider the problem from the perspective of recognising the existence of homophobia in the law itself.

Only at the end of the 1990s, when academics began to systematically include the demands of gay men and lesbian women for liberation and emancipation in the context of universal human rights did the new frame of reference replace the preceding approach: consideration of universal rights met the locally-defined struggle for civil rights, moving the legal discourse to a constitutional and fundamental rights level that every legal system must now deal with. In recent years, authors and activists have begun to use the phrase ‘sexual rights’, which incudes the right of all persons to express their sexual orientation, with due regard for the well-being and rights of others, without fear of persecution, denial of liberty, or social interference.

From this perspective, the first step in the debate has been to define the object of protection: is it an identity, a form of behaviour, a status or a manifestation of one’s private life? Sexual orientation can be understood as a personal and private matter that does not have public relevance. As a consequence of this assumption, homosexuals cannot be identified as a social group or a minority to protect, it being sufficient, from the point of view of the legislator, to grant respect only for one’s private life. This debate encounters national differences concerning ways of protecting minority rights, such as by creating ad hoc, special or exceptional legislation, especially in the field of criminal law. Secondly, even after agreeing with the autonomous dimension of sexual orientation as an expression of personality, in either private or public places, many disputes have arisen over the terms to use in granting the defined protection, which involve issues of accuracy as well as resistance to definition and compartmentalisation. Lying behind these worries about the use of language to define people is often a refusal to recognise non-approved sexual practices and identities, or to develop, by using new terms in the law, new cultural values and systems of meaning for a society that is not yet able to accept a concept of ‘citizenship in diversity’.

This debate at the international...

Table of contents

• Cover
• Title
• Copyright
• Foreword
• Contents
• List of Contributors
• Table of Cases
• Table of Legislation
• 1 Introduction
• Part I Exposing and Opposing Homophobia in Society
• Part II Recognising and Combating Homophobia in and with the Law
• Bibliography
• Index