Sexuality and Law in the New Europe
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb01999.x |
| Author | Nicholas Bamforth |
| Date | 01 January 1995 |
| Published date | 01 January 1995 |
REVIEW
ARTICLE
Sexuality and Law in the New Europe
Nicholas Bamforth
*
Kees Wmldijk and Andrew Clapham (eds)
,
Homosexuality:
A
European
Community Issue
-
Essays on Lesbian and Gay Rights
in
European Law and
Policy,
Dordrecht/Boston/London:
Martinus Nijhoff Publishers, 1993, xvi
+
426
pp, pb
f
15.W.
The law’s treatment of sexuality, and in particular its unfavourable treatment of
people whose sexual orientation is not heterosexual, has formed the subject-matter
of a growing number of academic texts and articles over the last 30 or
so
years.’
Despite the overwhelming social hostility which is still directed at people who are,
or
are perceived as being, lesbian, bisexual or gay, the increasing visibility of such
people in social life, and the consequent political significance
of
the law’s
regulation of their sexual orientations, has begun to provide a rich subject-matter
for academic analysis. An early example
of
this process was the Hart/Devlin
debate at the start of the 1960~.~ At one level, this debate concerned the
desirability or otherwise of the Wolfenden Committee’s proposal to decriminalise,
in a limited range of circumstances, homosexual acts between men.3 More
generally, however, the debate brought into play the relationship between law and
morality, and the issue of the law’s proper function in society.
The HartIDevlin debate highlighted at least two useful and interconnected
purposes which can be served by academic analysis of legal regulation of lesbian,
bisexual and gay sexual orientations: first of all, such analysis can assist in testing
the strength of practical arguments for (or against) reforming the law in this field;
secondly, general academic theories concerning the proper functions of law can be
used to shape practical arguments about the acceptability of the particular laws and
law reform proposals under scrutiny.
Homosexuality: A European Community Issue
must be the most comprehensive
collection of materials to date in the English language dealing with the treatment of
lesbians, bisexuals and gay men under European Community law and the
European Convention on Human
right^.^
The work, co-ordinated by the
European Human Rights Foundation at the behest of the European Parliament and
*Lecturer in
Law,
University College London.
I
am grateful to Robert Wintemute and Lorraine Desai for their comments concerning aspects of this piece.
Recent examples include Mohr,
Gays/Justice:
A
Study
of
Ethics, Sociery
and
Law
(Guildford:
Columbia University Press, 1988); Jeffery-Poulter,
Peers, Queers and
Commons:
me Struggle for
Gay Law Reform
from
I950
to the Present
(London: Routledge, 1991); Wintemute, ‘Sexual
Orientation Discrimination’ in McCrudden and Chambers (eds),
Individual Rights and the Law
in
Britain
(Oxford: Clarendon Press, 1994) ch 15.
2
Hart,
Law, Liberty and Moraliry
(Oxford: OUP, 1962); Devlin,
nte Enforcement of Morals
(Oxford:
OUP, 1965).
3
Report of the Commitfee
on
Homosexual Offences and Prostitution
(1957) Crnnd 247.
4
For other treatments of this issue,
see
Wintemute, n
1
above; Tatchell,
Europe
in
the
Pink:
Lesbian
and Gay Equaliry
in
the New Europe
(London: Gay Men’s Press, 1992); on ages of consent, cf Helfer,
‘Finding a Consensus on Equality: The Homosexual Age of Consent and the European Convention on
Human Rights’ (1990) 65
NW
L Rev
1044.
1
@
The Modern Law Review Limited
1995
(MLR 58:1, January). Published by Blackwell Publishers,
108 Cowley Road,
Oxford
OX4
IJF
and 238 Main Street, Cambridge, MA 02142, USA.
109
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