Legal Recognition of Homosexual Orientation in Countries Around the World

Featuring Kees Waaldijk, professor of Comparative Sexual Orientation Law at Leiden Law School, the Netherlands

Tuesday, February 12, 2013
UCLA School of Law
Room 1314
12:15 p.m. -1:40 p.m.
*Lunch Provided 

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Abstract: In many countries the legal recognition of homosexual orientation has been gaining momentum over the last three decades (the word ‘orientation’ is referred to in the wide sense in which it is being used in international law, covering attraction, expression, behaviour, and relationships).  From the 1790s until the 1970s countries had either criminalised, or ignored, or decriminalised sex between people of the same gender (with or without the same minimum age for homosexual and heterosexual sex). From 1981 more countries have decriminalised (often following the lead given by the European Court of Human Rights that year). From the same year onwards a growing number of countries have started to prohibit sexual orientation discrimination (in employment or beyond). And simultaneously a growing number of countries have started to recognise same-sex couples as cohabitants, as civil partners, as parents, as spouses. The level of such recognition is certainly not rising in every country, but only relatively few countries have seen a recent decline in legal recognition.

Supposedly, this process of legal recognition is being influenced by – and having effects on – other developments in society. As a lawyer, Waaldijk can only speculate on such social interaction. But as a legal scientist, Waaldijk can try to make it easier for other social scientists to study the social impact of and on law. Waaldijk has tired to collect a reliable set of legal data – for all countries since 1791 – on the eight most obvious aspects of legal recognition of homosexual orientation. Secondly, he has designed an index in which all these data can be translated into a number for every country for every year (a number between 0 and 8). And thirdly he has visualised this index by correlating it to one of the very few available indicators for long term developments with respect to homosexuality in many countries: the Dislike of Homosexuals as Neighbours, as measured in 90 countries by the World Values Survey and the European Values Study. The result is a dynamic bubble chart that tells the story of how homosexual orientation achieved more (or less) social and/or legal recognition in those countries since 1990.

This legal index, probably the first of its kind for countries all over the world, is still experimental, unpublished. It could be improved by including more aspects (such as the enforcement of anti-homosexual laws, or the use of general laws to specifically prosecute homosexual people, or the existence of laws explicitly restricting information about homosexuality, or specific laws against anti-homosexual violence, etc.), each requiring a lot of research. This legal index could be used to find correlations with all kinds of political, social, economic or legal indicators, or combinations thereof. Together they may tell the story in different ways. They may highlight countries that are not fitting in general trends. They may suggest explanations for parts of our history. Would the index also help to reveal parts of the future? Or at least: would it yield strategic information for LGB activists and others trying to shape the future?

About: Before being appointed in 2011 to the chair in Comparative Sexual Orientation Law at Leiden University, and after obtaining his LLM in Rotterdam and his PhD in Maastricht, Kees Waaldijk worked at the universities of Maastricht, Utrecht, Edinburgh, Lancaster, California (UC Hastings), and Leiden. In 1987 he published his first article on same-sex marriage, and in 1993 and 2006 he co-authored books on sexual orientation discrimination in the European Union. He contributes the article on ‘Same-Sex Partnership’ to the Max Planck Encyclopedia of Public International Law. His 2012 inaugural lecture in Leiden was called ‘The Right to Relate. On the Importance of “Orientation” in Comparative Sexual Orientation Law’. Most of his publications are available at www.law.leidenuniv.nl/waaldijk.

Many of the data used for the legal index can be found in: Kees Waaldijk, Legal recognition of homosexual orientation in the countries of the world. A chronological overview with footnotes, Leiden: Leiden Law School, 2009 (online at http://hdl.handle.net/1887/14543), and in: Lucas Paoli Itaborahy, State-sponsored Homophobia. A world survey of laws criminalising same-sex sexual acts between consenting adults, Brussels: ILGA – The International Lesbian, Gay, Bisexual, Trans and Intersex Association, 2012 (online at http://ilga.org/ilga/en/article/nxFKFCd1iE).