Comparative and International Approaches to Gender, Sexuality and the Law

Course description

Students will learn how different aspects of sexuality, gender and sexual orientation are being treated around the world and ignored and/or recognized in national and international law. Gender, sexuality and social behavior related to it have always been subject to norms, rules and value judgments. This has been reflected traditionally by religious norms and more recently by legal norms conditioning such aspects and subjecting certain behaviors to specific conditions and sanctions, be it education, military service, professional choices, marriage or heritage – all these are regulated at national and increasingly international level. Human rights have become a predominant looking-glass through which they are analyzed, but there are also other aspects that shape today’s norms and values relating to these aspects. Students will learn to analyze their own views and value judgments and to understand the differing legal solutions found globally. They will compare the various solutions and analyze the difficulties arising from the co-existence of various systems. In particular, they will study common approaches at regional and global level to shaping the respective rules.

Students will become familiar with the most important case law in the field, especially from the European Court of Human Rights and the UN Human Rights Committee, but also from various national courts. After an introduction to the role of international law in this area students will study various specific aspects. These include the criminalization of certain individual behaviors and the attempts to decriminalize many of them in recent years now that they are considered as expressions of one’s personal freedom. At the same time the criminalization of certain gender-related crimes will be studied (hate crimes, discrimination etc.). General ideas of equality and non-discrimination will also be examined in detail. In addition certain specific situations in life (employment, marriage, parenting etc.) will be studied in more depth in order to understand to what extent various legal solutions and social attitudes shape society.

The course is based on an interactive form of teaching. Students will have to prepare short papers and present them in class. In addition, a considerable amount of time will be devoted to group discussions and role playing.

Learning Outcome

The course allows students with different academic backgrounds to understand current issues of society that are important for global cooperation and coordination. A broad spectrum of relevant disciplines is involved (history, economics, cultural studies, sociology etc.) to understand the political and legal implications of various solutions. The knowledge thus gained is of importance in many activities, be they in academia, private practice, politics or culture. Students will be aware of existing structures and their origin. The will be trained to assess the impact of these structures on the well-being and performance of individuals and to propose improvements and processes that can lead to an acknowledgement of diversity and respect of individual and societal needs. 

Syllabus and Reading

1. International Law and Gender/Sexuality

Readings: “International Commission of Jurists (ICJ), Yogyakarta Principles - Principles on the application of international human rights law in relation to sexual orientation and gender identity” March 2007, available at: http://www.unhcr.org/refworld/docid/48244e602.html

2. (De)criminalization of Specific Behaviors

Readings: International Commission of Jurists (eds.), Sexual Orientation, Gender Identity and Justice: A Comparative Law Casebook, Geneva, 2012 (hereinafter: Casebook), Ch. 1.

This publication can be downloaded free of charge at: http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2012/05/Sexual-orientation-gender-identity-and-Justice-report-2011.pdf

3. Equality and Non-Discrimination

Readings: Casebook, Ch. 2

4. Freedom of Association and Expression

Readings: Casebook, Ch. 4.

5. Military Service

Readings: Casebook, Ch. 5.

6. Employment

Reading: Casebook, Ch. 3.

7. Marriage

Readings: Casebook, Ch. 14.

8. Partnership Benefits and Recognition

Readings: Casebook, Ch. 13.

9. Parenting

Readings: Casebook, Ch. 11.

10. Asylum and Immigration

Readings: Casebook, Ch. 12.

Teaching Evaluation Method

This course will be taught using a combination of lectures and class discussions. It will be based on student preparation of the course materials which will be distributed in advance. These course materials structure the entire course program in the form of review questions. Students are supposed to prepare and to debate them in class as well as to contribute with their own insights.

• There will be a 2-hour written final examination which will be worth 60% of the final course mark.
• Class participation is expected. It will be worth 20% of the final course mark.
• Each Student has to prepare at least one short presentation per half-term and to be able to present them in class (10% each).

Reading

Basic Text:

International Commission of Jurists (eds.), Sexual Orientation, Gender Identity and Justice: A Comparative Law Casebook, Geneva. This publication can be downloaded free of charge at: http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2012/05/Sexual-orientation-gender-identity-and-Justice-report-2011.pdf

Further readings:

• United Nations High Commissioner for Human Rights, Born free and equal (New York and Geneva: United Nations, 2012).
• Frederick Cowell and Angelina Milon, Decriminalisation of Sexual Orientation through the Universal Periodic Review Human Rights Law Review (2012) 12(2): 341-352 first published online May 10, 2012.
• Paul Johnson, Homosexuality and the European Court of Human Rights (London, Routledge 2012).
• Kees Waaldijk, Same-sex partnership, international protection. In: The Max Planck Encyclopedia of International Law, Oxford 2012, p. 1125-1133.
• Kees Waaldijk, The right to relate: On the importance of “orientation” in comparative sexual orientation law, (2012, available at: https://openaccess.leidenuniv.nl/handle/1887/19612).
• Kristen Walker, Transsexuals and transgenders, international protection. In: The Max Planck Encyclopedia of International Law, Oxford 2012, p. 1056-1059.
• Agence des droits fondamentaux de l'Union européenne, Manuel de droit européen en matière de non-discrimination, Luxembourg, Office des publications de l'Union européenne, 2011.
• European Union Agency for Fundamental Rights, Homophobia, Transphobia and Discrimination on Grounds of Sexual Orientation and Gender Identity in the EU Member States, Vienna 2011.
• Eirik Bjorge, Sexuality Rights under the European Convention on Human Rights. In: Nordic Journal of Human Rights, vol. 29(2011), Nrs 2-3, p.158-183.
• Commissioner for Human Rights (Council of Europe), Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe (Background Document), Strasbourg, October 2011.
• International Commission of Jurists (ICJ), Sexual Orientation, Gender Identity, and Justice: A Comparative Law Casebook, Geneva 2011, available online.
• Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, Strasbourg, Council of Europe Publishing, 2011.
• Husson-Rochcongar Céline, The protection of transsexual’s rights by the European Court of Human Rights: A true breakthrough or a new risk? In: Equality and Justice : Sexual Orientation and Gender Identity in the XXI Century, Udine, Forum, 2011, p. 177-190.
• Paul Johnson, Homosexuality, freedom of assembly and the margin of appreciation doctrine of the European Court of Human Rights : Alekseyev v Russia. In: Human Rights Law Review, vol. 11, Nr. 3 (2011), p. [578]-593.
• Kay Lalor, Constituting sexuality: rights, politics and power in the gay rights movement. In: The International Journal of Human Rights; vol. 15 (2011), Nr. 5, p. 683-699.
• Suzanne Marks, Global recognition of human rights for lesbian, gay, bisexual, and transgender people. In: Vulnerable and Marginalised Groups and Human Rights, Cheltenham [etc.], Elgar 2011, p. 287-296.
• Iain Mcdonald, When hate is not enough: tackling homophobic violence. In: Gender, Sexualities and Law, New York, Routledge 2011, p. 148-160.
• Henri de Waele and Anna van der Vleuten, Judicial activism in the European Court of Justice : the case of LGBT rights. In: Journal of International Law and Practice, vol. 19 (2011), Nr. 3, p. 639-666.
• Andreas R. Ziegler, LGBT Rights and economic migration: will the liberalization of the movement of persons in economic integration agreements increase the need for common regional standards regarding civil status rights? In: Equality and Justice : Sexual Orientation and Gender Identity in the XXI Century, Udine, Forum, 2011, p. 219-240. 

An updated version of this bibliography can be found here: http://www.unil.ch/dip/page89166_en.html