Petra Sussner, a post-doctoral researcher at the Humboldt University of Berlin who also coordinates the DFG research project 'Claiming a Common World? Gender in Environmental Law and Climate Litigation' at the Center for Interdisciplinary Research at Bielefeld University, has written a quite interesting essay for the Völkerrechtsblog. Entitled, The Future of Sexual Orientation and Gender Identity in Human Rights: Where Will European Consensus Take Us?, the essay considers the state of power relationships, expressed as and through law, that serve as the way in which collectives impose certain rationalizations of the human body--or better put certain rationalizations of the way n which one considers the human body in the environment prepared and maintained for it by the state--and through the state, to social relations. Better put, in Dr. Susnner's words:
Over the last decades, the regulation of gender and sexuality has undergone major changes in Europe. From Athens to Reykjavik, same-sex unions are legal reality. States must no longer require surgical measures before they correct gender entries. So, is heteronormativity – the normative idea of binary and heterosexual gender hierarchies – still part of the bigger (legal) picture? (The Future of Sexual Orientation and Gender Identity)
To that ends, Dr. Sussner considers twp quite interesting cases--Affaire Y v. France (Requête no 76888/17), and Schalk and Kopf v. Austria (Application no. 30141/04)--"as examples to explore the negotiations of State’s obligations and European consensus in the area of gender and sexuality." (The Future of Sexual Orientation and Gender Identity).
Affaire Y v. France focused on the protection of rights for intersex persons. There are two aspects of this focus. The first touches on the protection of rights, the second is on the broader political-cultural issue of attacking socio-generative principles of hetero-normativity and thus affect the fundamental framework within which rights are understood and applied. Tat two prong focus of the discussion sometimes makes for sloppy analysis (e.g., "intersex people challenge
(violent) heteronormative practices including medically unnecessary
surgeries on children or compulsory binary gender registration."The Future of Sexual Orientation and Gender Identity)). In Affaire Y v. France, the complainant sought to challenge France's administrative assignment of Y as male. Y did not reject classification entirely (perhaps a more radical but conceptually stronger position in terms of limiting the rights of political authorities to interfere with the aut0nomous lives of its citizens) . Y merely sought to compel classification as "neutral" or "intersex." That request was denied by French authorities and eventually rationalized by a French court on two grounds: (1) the application of a perception standard and (2) an "effects" test of sorts, not focused on Y but on the integrity (as the authorities saw it) of the French legal system and the society managed thereunder. The perception standard was rejected by the ECtHR; the send was saved by application of the traditional rule of deference (the margins of appreciation standard) jurisprudence of the Court.
A similar approach in Schalk and Kopf v. Austria from a decade agao but here the issue was the positive obligation of a state to provide access to the state of marraige without regard to the sexual or gender identities of the parties. The case was related on the basis of its reliance on Goodwin v. United Kingdom where the court refused to apply the rule of deference under Art. 12 ECHR to exclude trans people in different-sex partnerships. The effirt was unsuccessful based on a more complicated (and polycentric) applicaiton of the f¡defe4rence rule of margins of appreciation:
Six out of 47 member States of the ECHR granted same-sex couples access to marriage (para. 58). So, in absence of a European consent, Member States were not obliged to provide for such access (also according to Art. 14 in conjunction with Art. 8 ECHR). However, in comparison with EU law, the Court also emphasized that the right to marry under Art. 9 of the Charter of Fundamental Rights of the European Union did not include a reference to “men and women”. Thus, this right would not “under all circumstances be limited to […] two persons of the opposite sex” (para. 61). (The Future of Sexual Orientation and Gender Identity)
And it is in those decisions--affirming the role of deference rules as the core the constitutional managerial role of the European Convention and its jurisprudence--that Dr. Sussner suggests the politics of jurisprudence remains a strong defense against the evolution of the ECtHR into a more politically positive instrument of European socio-generative movement. And what stands in the way, in this case, is the insistence on reliance on the formative principles of hetero-normativitiy as the baseline against which deference is considered. " This exercise of restraint is not only connected through the interpretative approach of European consensus. It is also preconditioned by a perspective that centres heteronormativity in terms of
heterosexual gender binary. This becomes apparent in comparison with the German FCC
ruling." (
The Future of Sexual Orientation and Gender Identity).
That leaves open the more fundamental question: what soial structres ought to be invoked where people within political-social collectives seek to transform (sometimes radically) the standard operating system of social relations and thus of its reflection in the political, legal, economic and cultural order maintained in and through states. In Marxist-Leninist states that answer would be simple--it is to be undertaken by the vanguard of social forces organized as a communist party through such process and means as that vanguard imposes. In theocracies, the answer is also simple: it is for the priestly caste, in their interpretation and invocation of the divine, through which such efforts must be undertaken and in and through which such interpretations (always consistent with the eternal word but subject to the vagaries of human perception) may be undertaken.
The matter is more complicated in liberal democratic states. Here its component parts produce the contradiction that is manifested in the ECtHR cases--the contradiction between liberal normativity and democratic foundations of the political order. Liberal normativity and its development lies at the foundation of the current efforts to interrogate the constitution of sex and gender--and its political-economic role in the organization of coercive political collectives. But the control of the narratives of liberal normativity do not speak to the systeic integrity at the foundation of the democratic part of liberal democracy. In that aspect, the political collective focuses on legitimacy and integrity, with an eye towards its fundamental obligation to serve the masses (however they are organized and expressed their individual desires through collective organization). Democratic legitimacy starts from the bottom--the autonomous individual--and works its way up. . . at least in theory. But theory is important here for preservation of the systemic legitimacy necessary to develop and ultimately successfully challenge hetero-normativity. And thus the power of margins of appreciation and rules of deference. It doe snot speak to the preservation of specific narratives of social relations--but to the process by which such transformations may in their turn be legitimated and eventually also challenged by what comes after. (discussed in “Inscribing Judicial Preferences into Our Basic Law: The Political Jurisprudence of European Margins of Appreciation As Constitutional Jurisprudence in the U.S.,” Tulsa Comparative & International Law Journal 7:327-373 (2000)).
The more interesting question, and the one raised by Dr, Sussner, is the extent to which current social narratives create structural barriers to the dialogue at the heart of the margins of appreciation doctrne. That is, that in this case hetero-normativity itself produces structural corruption of the sort that makes it impossible to effectively undertake the sort of consensus building at the Member State level at the heart of the doctrine. Dr. Sussner suggests that these impediments can be overcome , and certainly that appears to be the hope of ECtHR jurists. The real question, however, is both constitutional and political. And that is a question that remains to be answered, perhaps in different ways, as one generation fades into another. And yet, what Dr. Sussner lays at the feet of the European Court might be better situated within the naitona constitutional orders within which the Court's authority is bounded. Indeed, to the extent that structral impediments exist is ti precisely because within these constitutional orders, hetero-normativity is supposed to do just that; just as the replacement of hetero-normativity will create its own self protective structures buried deep within the normative structures of law, politics and culture. The stakes are high. But everyone knows that. The difficulty, as is always the case where a cultural fundamental is challenged, is that deeply embedded normativity will not give way merely because a force (to their own way of thinking a leading social force) insists that it must be so. The slow hard hard work of getting the masses to embrace fundamental cultural change--one that by its own terms eliminates the objection that its triumph will have tremendous consequences because indeed, that is its objective, in a democratic society is perhaps best undertaken within constitutional orders rather than above them, where as here, the change changes even the core analytical lens that a supra national entity would have to use.
Dr. Sussner's excellent essay follows.
