Queer Readings of Europe: Gender Identity, Sexual Orientation and the (Im)potency of Rights Politics at the European Court of Justice
| Author | Nico J. Beger |
| Published date | 01 June 2000 |
| Date | 01 June 2000 |
| DOI | http://doi.org/10.1177/096466390000900204 |
| Subject Matter | Articles |
QUEER READINGS OF EUROPE:
GENDER IDENTITY, SEXUAL
ORIENTATION AND THE
(IM)POTENCY OF RIGHTS
POLITICS AT THE EUROPEAN
COURT OF JUSTICE
NICO J. BEGER
University of Amsterdam, Netherlands
ABSTRACT
The aim of this article is to argue in favour of queer theory’s potential for non-essen-
tialist politics and legal strategies within the European context. The issues raised focus
on the connection between gay/lesbian and transgender rights politics, and on the queer
potential of sexual discrimination litigation. Taking as my example two recent court
cases of the European Court of Justice (P vS and Cornwall County Council; Lisa Grant
v South West Trains Ltd), I attempt to establish links between the apparently contra-
dictory ‘academic queer critiques’ and ‘practical politics’ (of litigation) through a queer
reading of those cases. Two parallel lines of thought are developed: first, those cases
bring the intrinsic connection of gay/lesbian and transgender politics into sight through
their combination of sex discrimination and sexual orientation discrimination; sec-
ondly, the analysis of the two cases shall illustrate the simultaneous procedures involved
in all staging of politics: both cases re-inscribe and disrupt the deviance of homo-
sexuality and transgender at the same time. I contend that the apparent gap between
‘practical (legal) politics’ and ‘queer academic thought’ need not be as fundamental as
many make it out to be and that in the European context a queer legal critique is both
necessary and fruitful in that it highlights the ‘dilemma of rights politics’.
SOCIAL &LEGAL STUDIES 0964 6639 (200006) 9:2 Copyright © 2000
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 9(2), 249–270; 012637
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INTRODUCTION
THE LAST THREE DECADES have seen great achievements in
lesbian and gay legal politics in Europe, from de-criminalisation and
anti-discrimination legislation to registered partnership. These rights
are powerful insignia: a safety belt for those historically considered to be sub-
jects of non-belonging and without legal rights. Gay/lesbian, but also trans-
gender/transsexual rights are among the many leftovers of the unfinished
business of modern democracies (Kaplan, 1997: 3). Justice and rights are,
however, not only given as positive re-enforcement, they are – and have his-
torically been – more than a protective shield. The state – through its legal
system and means of social control – is also a primary agent in regulation,
normalisation and exclusion in the first place (Brown, 1995; Hark, 1998;
Morgan, 1995, 1996; Stychin, 1995). The rights won appear to change the
status of gays/lesbians in society. However, while that may hold true for
many, these rights have also been seen by scholars in gay/lesbian and femin-
ist studies as an effective extension of privileges to some – mainly to those
who benefit from other racial, class or gender hierarchies – maintaining a
heteronormative and binary gender norm(ality) (Duggan, 1998; Evans, 1993,
1998; Hark, 1998; Smith, 1998). The complex political significance and out-
comes of gay/lesbian politics, therefore, need to be investigated.
During the last decade this investigation took its most critical form within
a type of criticism termed ‘queer theory’. Rights politics are not at the fore-
front of what has become known as queer politics, which rather focus on ‘in
your face’ political and cultural happenings (Berlant and Freeman, 1992), but
they are indeed the focus of many queer theoretical critiques of lesbian/gay
politics. Queer theory mainly focuses on problematising the unquestioned
foundations of political work in the social, legal and government arena, by
destabilising concepts of sexual minority, definable identities and unchal-
lenged gender systems. From this vantage point, the idea of a minority fight
for equality and liberation is ultimately the creation of a phantasmatic politi-
cal and social space, in which sexual object choice becomes the master cat-
egory/the master narrative of self and self-identification. From a practical
perspective, however, the master narrative of homosexual identity histori-
cally has and still does allow for the claiming of rights in the legal and politi-
cal arenas of the European Union (EU) and is at times very successful there.1
This article examines a particular point at which recent European legal poli-
tics could have met the radical aims of queer theory. I will argue that the chal-
lenges queer theory offers are best not understood as a denial of the
importance of legal battles, but as an acknowledgement that the claiming of
rights produces a necessary dilemma whose tensions are simultaneously irre-
solvable and productive. In order to pursue my argument, I will analyse two
European Court cases using the insights of one of the most recent areas of
queer theory: queer law. According to queer law, the legal realm essentialises
homosexuality, creates the subjects it needs to govern and is, thus, a major
force in maintaining the privilege of heterosexuality (Morgan, 1995: 10).
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