Rien que des mots: Counteracting homophobic speech in European and U.S. law
| Published date | 01 December 2021 |
| Date | 01 December 2021 |
| DOI | 10.1177/13582291211043420 |
| Subject Matter | Articles |
Article
International Journal of
Discrimination and the Law
2021, Vol. 21(4) 374–400
© The Author(s) 2021
Article reuse guidelines:
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DOI: 10.1177/13582291211043420
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Rien que des mots:
Counteracting homophobic
speech in European and U.S.
law
Natalie Alkiviadou
1
and Uladzislau Belavusau
2
Abstract
Adopting a comparative perspective, this article examines legal means and practices of
challenging homophobic speech in European and U.S. law. This exercise revolves around
the study of major cases concerning homophobic speech from the law of the European
Court of Human Rights and broader legal framework within the Council of Europe (the
CoE), the Court of Justice of the European Union (EU) as well as the United States
Supreme Court (along with a broader scrutiny of U.S. law in comparative perspective
with European (CoE and EU law) in recent years. The article concludes that the concepts
of (1) hate speech (in constitutional, administrative and criminal settings) (2) direct
discrimination and (3) harassment (in labour and anti-discrimination law) will be central in
the strategic litigation of LGBT organizations seeking to redress the climate of homo-
phobia via various legal avenues in both Europe and the U.S. While in the settings of
European law, all three concepts –depending on the context –can benefit victims of
homophobia in their judicial redress, U.S. law offers coherent protection in its em-
ployment law framework, even though this remains in need of further strengthening.
Keywords
Hate speech, homophobic speech, comparative law, US Supreme Court, non-
discrimination, freedom of expression, LGBT rights, European Law
1
Justitia, Denmark
2
T.M.C. Asser Institute –University of Amsterdam, The Netherlands
Corresponding authors:
natalie@justitia-int.org
u.belavusau@asser.nl
Introduction
They are trying to convince us that the LGBT are people. But this is just an ideology.
(Andrzej Duda, 13 June 2020)
1
This statement by Andrzej Duda, currently the President of Poland, aptly captures a
climate of homophobia prevalent in verbal expression and imagery inherited by Western
civilization from monotheistic religions and their doctrinal teachings.
2
Homophobic
expressions have traditionally been a part of both right and left wing populism, seeking to
gain voters and support via demagogical rhetoric appealing to the ‘family values’of
heterosexual majorities, especially in religious heteronormative societies.
In Poland, the ‘LGBT free’theme reflects a hazardous demagogy. This populist
rhetoric was a pattern started off by a sticker given out with the weekly magazine Gazeta
Polska, showing a crossed-out rainbow flag and the words ‘LGBT free zone’. The
distribution of these stickers was blocked by a lower court order.
3
Yet, in 2020, local
authorities in almost a third of the country adopted non-legally binding, but otherwise
discriminatory and symbolically-laden resolutions in ‘support of traditional heterosexual
family’, numerous of which included homophobic statements and declarations that parts
of Poland shall be free from ‘LGBT ideology’.
4
Such phenomena constitute manifes-
tations of a broader rhetoric advanced by the country’s leadership, with President Duda
promulgating, during his 2020 election campaign, that LGBT rights is an ideology ‘even
more destructive’than communist ideology which indoctrinated the Polish youth before
1989.
5
As expected, the Catholic Church participates in the stirring up of this rhetoric and
subsequent activities, whether those be stickers or resolutions, with the Archbishop of
Kraków, for example, warning of a neo-Marxist ‘rainbow plague’.
6
Likewise, in Putin’s Russia, the ‘gay propaganda’law remains a ‘classic example of
political homophobia’.
7
This legal act, formally entitled the law ‘aimed at protecting
children from information promoting the denial of traditional family values’, prohibits the
provision of information to minors on the lives of LGBT people disseminated through the
press, television, radio and the internet.
8
Putin’s gay propaganda legislation in Russia
along with Lukashenka’s claims in Belarus that it is better being a dictator than gay
9
all
fall within the current version of a ’gay ideology’rhetoric, which, inter alia,targets
conservative electorates. This rhetoric alludes to the shameful nature of homosexuality
and purports to protect children from this ultimate embarrassment, usually within the
ambit of maintaining ‘family’or ‘traditional’values. Although such homophobic
manifestations may seem remote from medieval bashing of Sodomites and incitement to
kill gays by ISIS, they constitute a crucial strand in contemporary homophobic narrative,
with its construction of a homosexual subject, relative secularization in Western de-
mocracies, medicalization of sexuality and appropriation of the populist emphasis on
‘family values’from church by states.
10
Homophobia and homophobic rhetoric continue
to be phenomena in the 21st century, with courts of the Council of Europe, the European
Union and the U.S, dealing with homophobic speech in recent case-law. Such cases
include, inter alia, online homophobic and transphobic statements regarding a proposal to
Alkiviadou and Belavusau 375
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