Families, Partnerships and Law Reform in the European Union: Balancing Disciplinarity and Liberalisation

DOIhttp://doi.org/10.1111/j.1468-2230.2006.00578.x
AuthorClare McGlynn
Publication Date01 Jan 2006
REVIEWARTICLE
Families, Partnerships and Law Reform in the European
Union: Balancing Disciplinarity and Liberalisation
Clare McGlynn
n
Carl F. Stychin,Governing Sexuality:The Changing Politics of Citizenship and
Law Reform,Oxford: Hart Publishing, 2003, x þ162 p p, h b d32.00.
INTRODUCTION
Carl Stychin’s Governing Sexuality ^ The Changing Politics of Citizenship and Law
Reform, is a collection of essays on the general theme of sexual citizenship and
law reform in Europe.
1
The essays, published elsewhereover the previous four to
¢ve years and reworked for publication in this book, are theoretically informed
studies of ‘law reform and legal struggle’ (p 5). Stychin challenges assumptions
about the value of ‘liberal law reforms’ which promote partnership and other
‘family’ rights and expresses concerns about the disciplinary nature of rights dis-
course and the ways in which rights ‘govern’ our sexuality and ways of living.
Stychins analysis is perceptive, provocative and demands careful consideration.
The aim of this review, however, is to suggest that while we must take heed of
Stychins concerns, we must also recognise the value of progressive law reform in
expanding the concept of family, reworking its meanings and associations, and
embracing the diverse nature of family practices. This argument will be made
with a particular focus on the laws of the European Union, a ¢eld of scholarship
in which Stychin’s theoretical and thought- provoking arguments are much
needed. Before expanding onthis argument in more detail, the followingsection
outlines Stychin’s analysis.
CHALLENGING PROGRESSIVE LIBERALISM
Stychin begins by asking several questions:‘In what ways are the politics of same
sex sexualities changing, particularly in the United Kingdom, but more widely,
in the context of an integrating European Union? What are the implications for
law reform strategies around ‘homosexuality’, in an era in which those strategies
seem to be increasingly destined for success? And once law reform is achieved,
what remains of a politics of sexuality? At that point, should we be content with
n
Department of Law, University of Durham.
1 C. Stychin, Governing Sexuality:The Chang ing Politics of Citizenship and L aw Reform (Oxford: Hart
Publishing, 2003). Page references in the text areto this book.
rThe Modern LawReview Limited 2006
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2006) 69(1) MLR 92^107
howour sexualities are governed through law and, if not, what directionsshould
activism take?’ (p 1). These are the principal questions which the book sets out to
examine andthey also identify theperspectivefrom whichStychin approaches his
material.
In essence, Stychin sees a rising tide of liberalismwashing away di¡erence. He
considers political activism to be increasingly focused on assimilation and law
reform, at the expense ofa broader agenda. In other words, while activism around
same sex sexualities has long been marginalised politically, it is now mainstream
and this perhaps threatens the identitiescreated in the ¢ghtof resistance. He states
that the old ‘certainties’ about gay politics no longer always hold true (p 2). The
role of law is changing.While law reform strategies and analyses have long been
focusedon the ‘anti-gay’ legislation of manystates, Stychin’s focus is on the ‘liberal’
and ‘progressive’ law reforms in the UK and EU member states and the ways in
which‘sexuality is governed within such aclimate of liberalisation’ (p 2,emphasis in
original).
We all know that repressive criminal lawsagainst, for example, gaymale sexu-
ality, are a bad thing and that campaigning to reform such laws is necessary. As a
result, it is often also taken for granted that law reforms ending discrimination
against lesbians and gay men in other arenas, for example in relation to marriage,
are also always positive and welcome. But this is what Stychin wishes to chal-
lenge. He contests the assu mption that recent, ‘progressive’ law reforms in the
arena of same sex sexualities are always a good thing: hence his introductory
questions about the future of a politics of sexu ality and about the appropriate
focus for activism. Stychin’s context is that of Europe, with case studies covering
Britain,France and Romania as well as the European Union moregenerally. He is
keen to examine the European Union as a ‘rich source of material’for the studyof
the role of law in the regulation of sexualities, when the literature in this ¢eld is
centred on the North American experience (p 2).
In theoretical terms, Stychin is ultimately concerned with the role of law in
disciplining the self. His premise is that while law can operate as a means of
repression and social control, as in the enforcementof anti-gay sex laws, legal dis-
course also operates in a ‘more subtle, disciplinary mode, by encouraging, in an
in¢nite varietyof ways, individuals to conform to how the law constructs proper
^ even civilized ^ behaviour’ (p 3). Such ‘proper behaviour’ is constructed in the
context of the hegemony of neoliberal economics and emphasises the ‘privatisa-
tion of responsibility for others’ and the ‘withdrawal of the state from many
aspects of care’ (p 3). Ultimately, therefore, Stychin is ‘cautious’ and at times ‘criti-
cal’of the value of liberal law reform and of ‘activist strategies which increasingly
place law at the centre of political struggles’ (p 3).In other words, he says, he does
not ‘subscribe wholeheartedly’ to the ‘idea or ideal of liberal legal ‘progress’’ (pp
3- 4). Stychin says he may be a‘spoiler’ at the party to‘celebrate progress’ (p 4).
Stychins theoretical foundation is the concept of sexual citizenship which he
elaborates in the ¢rst chapter. He argues that historicallycitizenship has been con-
stitutively built on a series of exclusions through which individuals cou ld be
included as citizens or excluded as non-citizens. Stychin contends that citizenship
remains an ‘appealing’ concept in the context of s exual identity pol itics, although
he also considers how it can prove a‘limiting, disciplining and regulatory concept,
Clare McGlynn
93rThe Modern LawReview Limited 2006

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