Gay and Lesbian Law Reform: The Politics of Progress

1. Gay and Lesbian Law Reform: The Politics of Progress Daniel Monk School of Law, Birkbeck Institute of Gender and Sexuality University of London

2. ‘The Love that Dare Not Speak Its Name’ Oscar Wilde on being released from Reading Gaol in 1897: “Yes, we will win in the end; but the road will be long and red with monstrous martyrdoms”.

3. From decriminalisation to marriage . . . * Sexual Offences Act 1967 - decriminalised homosexual acts in private • Sexual Offences Act 2000 - equalized age of consent at 16 • Adoption and Children Act 2002 - permits same sex couples to adopt • Sexual Offences (Amendment) Act 2003 - recognised ‘male rape’; repealed ‘gross indecency’ and ‘buggery’

4. Criminal Justice Act 2003 - higher sentencing for homophobic hate crime • Local Government Act 2003 - repealed Section 28 Local Government Act 1988 • Civil Partnership Act 2004 • Gender Recognition Act 2004 • Human Fertilisation & Embryology Act 2008 • Equality Act 2010 - goods and service provision • Marriage (Same Sex Couples) Act 2013

5. Judicial activity . . . Ghaidan v Mendoza [2004] UKHL 30 Recognition of gay partners as ‘spouses’ Hale: ‘a guarantee of equal treatment is also essential to democracy’ HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 Rogers: ‘[To] reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right the convention exists to protect – his right to live freely and openly as a gay man without fear of persecution’

6. ‘Responsible citizenship’? • Didi Herman: ‘the extension of existing liberal categories to “new identities” not only “recognizes”, but regulates, contains,and constitutes them’

7. Children, families . . and sexuality

8. The Bad Old Days . . . • Re D (An Infant) Adoption: Parents Consent) 1977 AC 602, House of Lords • "A reasonable man would say, 'I must protect my boy, even if it means parting from him for ever so that he can be free from this danger. It follows that this is not a case of a rare incident of misconduct or criminality. The father has nothing to offer his son at any time in the future."

9. Queer Families . . . ? • Re G (Children) (Residence: Same-sex Partner) [2006] UKHL 43 - Significance of being the ‘biological’ mother • Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father) [2006] EWHC 2 - ‘nuclear family’ v father

10. Privatising care . . . ? • If everyone can now be in a family, and if families are the foundation for a healthy society, then it becomes all too easy for ‘can’ to become ‘should’ • Alison Diduck (2005)

11. EDUCATION . . . • Section 28, Local Government Act 1988 • Local Authorities shall not ‘promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship’ • Conservative/Lib Dem Coalition Agreement 2010 ‘We shall help schools to tackle bullying, especially homophobic bullying’

12. ‘silencing’ . . ‘good victims’?

13. Equality = Sameness?

14. Going on the Attack! • McFarlane v Relate Avon Ltd [2010] EWCA Civ 880 • Laws LJ: We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic.

15. Ladele v London Borough of Islington [2010] 1 WLR 955 – refusal to register civil partnerships • R (Eunice Johns and Owen Johns) v Derby City Council and Equality and Human Rights Commission [2011] EWHC 375 (Admin) - fostering • Bull & Bull v Hall & Preddy [2012] EWCA Civ 83 – refusal to accommodate in B&B • Catholic Care (Diocese of Leeds) v Charity Commission of England and Wales [2012] UKUT 395– adoption agencies compliance with anti-discrimination • Black and Morgan v Wilkinson [2013] EWCA Civ 820 – refusal to accommodate in B & B • Eweida and others v UK [2013] ECHR 37 (Ladele and McFarlane in Strasbourg)

16. Hate Crime . . • ‘What kind of attachments to unfreedom can be discerned in contemporary political formations ostensibly concerned with emancipation’? Wendy Brown, 1993 • ‘Violence is transposed onto these marginal spaces in a discursive shift that empties middle class life of any accountability’ Les Moran, 2005

17. References . . . • Wendy Brown (1995) States of Injury: Power and Freedom in Late Modernity, Princeton, NJ: Princeton University Press. • Alison Diduck (2005) ‘Shifting Familiarity’ 58 Current Legal Problems 234-254 • Didi Herman (1993) ‘The Politics of Law Reform: Lesbian and Gay Rights into the 1990s’ in J. Bristow and A.R. Wilson (eds) Activiating Theory: Lesbian, Gay, BisexualPolitics, pp.246–63. London: Lawrence and Wishart • Julie McCandless and Sheldon, S. (2010) ‘The Human Fertilisation and Embryology Act (2008) and the tenacity of the sexual family form’, Modern Law Review, 73(2): 175–207. • Daniel Monk (2011) ‘Challenging Homophobic Bulling in Schools: The Politics of Progress’ International Journal of Law in Context7(2): 181-207 • Les Moran (2001) 'Affairs of the heart: hate crime and the politics of crime control’, 12(3) Law and Critique 331-344 • Christine Piper (2000) in Heinze E (ed) Of Innocence and Autonomy: Children, Sex and Human Rights • Carl Stychin (2006) ‘Family friendly? Rights, responsibilities and relationship recognition’, in A. Diduck and K. O’Donovan (eds) Feminist Perspectives on Family Law, London: Routledge-Cavendish.