Research Handbook on Gender, Sexuality and the Law

537 Pages·2020·5.481 MB·English

by  Chris Ashford, Alexander Maine

© The Editors and Contributors Severally 2020
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system
or transmitted in any form or by any means, electronic, mechanical or photocopying, recording,
or otherwise without the prior permission of the publisher.
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Cheltenham
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Edward Elgar Publishing, Inc.
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USA
A catalogue record for this book
is available from the British Library
Library of Congress Control Number: 2019954431
This book is available electronically in the
Law subject collection
DOI 10.4337/9781788111157
ISBN 978 1 78811 114 0 (cased)
ISBN 978 1 78811 115 7 (eBook)
Contents
List of contributors viii
1 Introduction to the Research Handbook on Gender, Sexuality and Law 1
Chris Ashford and Alexander Maine
PART I NEW BOUNDARIES AND ACTIVISM
2 From the litigants’ perspective: Wilkinson v Kitzinger and the pursuit of
marriage equality in England and Wales 8
Sue Wilkinson and Celia Kitzinger
3 Formal recognition of adult relationships and legal gender in a comparative
perspective 17
Jens M. Scherpe
4 Diplomacy, conditionality and transnational LGBTI rights 32
Kay Lalor
5 Legislating and litigating same sex marriage in China 45
Tingting Liu and Jingshu Zhu
6 Striking women: the politics of gender, sexuality and the law in South Africa 60
Melanie Judge and Dee Smythe
PART II IDENTITY AND STATE
7 Life at the corner of poverty and sexual abjection: lewdness, indecency,
and LGBTQ youth 76
Libby Adler
8 Same sex marriage and Article 12 of the European Convention on
Human Rights 91
Paul Johnson and Silvia Falcetta
9 LGBTI migration in Europe 104
Alexander Schuster
10 Fully recognizing both dignity and equality values under the emergent
ECHR right to a same sex registered partnership 120
Helen Fenwick and Daniel Fenwick
11 Transgender rights in Europe: EU and Council of Europe movements
towards gender identity equality 134
Peter Dunne
v
vi Research handbook on gender, sexuality and the law
PART III LIVED SOCIETY
12 Normative understandings: sexual identity, stereotypes, and asylum seeking 149
Alex Powell
13 Feminist responses to same sex relationship recognition 164
Rosemary Auchmuty
14 LGBT rights and tax law: a comparative perspective 181
Anthony C. Infanti
15 LGBT rights in Africa 194
Siri Gloppen and Lise Rakner
PART IV BODILY AUTONOMY
16 A perfect storm: the UK government’s failed consultation on the Gender
Recognition Act 2004 211
Stephen Whittle and Fiona Simkiss
17 Becoming a legal proxy: the unintended consequences of informed
consent in US transgender medicine 232
stef m. shuster
18 (De)regulating trans identities 244
Flora Renz
19 ‘That’s a bit of a minefield’: supported decision making in intellectually
disabled people’s intimate lives 256
Rosie Harding and Ezgi Taşcıoğlu
20 Dispute resolution, domestic violence and abuse between lesbian partners 271
Maria Federica Moscati
PART V VIOLENCE AND VULNERABILITY
21 The global femicide problem: issues and prospects 286
Rosemary Barberet and Aneesa A. Baboolal
22 Law, society and domestic violence: ‘best practice’ methodologies for
evaluating integrated domestic violence services 301
Nan Seuffert and Trish Mundy
23 Gender and hate crime protections 317
Marian Duggan
24 Feminist mandated reporters question the Title IX system: when civil
rights programs adopt managerial logics and protect institutional interests 330
Jessica Cabrera
Contents vii
25 Vulnerability, victimhood and sex offences 341
Sharon Cowan and Rebecca Hewer
PART VI DEVIANCY AND ILLICIT CONSTRUCTIONS
26 Kinky identity and practice in relation to the law 362
Ummni Khan
27 Male sex work – a gendered, (hetro)sexist approach to regulation 379
Thomas Crofts
28 Regulating desire in Russia 396
Alexander Kondakov
29 Normative behaviour, moral boundaries and the state 409
Chris Ashford, Alexander Maine and Giuseppe Zago
30 Deviancy and illicit constructions 425
Brian Simpson
PART VII TRANSGRESSIVE BOUNDARIES
31 Masculinities and families: fragmenting law’s ‘family man’ 443
Richard Collier
32 The healthcare rights of people living with HIV and AIDS 457
Matthew Weait
33 Regulating pornography: developments in evidence, theory and law 471
Fiona Vera-Gray and Clare McGlynn
34 Defending pornography: the case against strategic essentialism 484
Alex Dymock
35 Red, white, and BLACK AND BLUE: the American criminalization of BDSM 497
Stephan Ferris
Index 513
Contributors
Libby Adler teaches at Northeastern University in Boston, where she holds a joint appoint-
ment with the School of Law and the College of Social Sciences and Humanities. She teaches
Constitutional Law and Sexuality, Gender and the Law. Professor Adler has written exten-
sively on sexuality, gender, family and children, including foster care, and draws heavily from
queer and critical legal theory. Her book Gay Priori: A Queer Critical Legal Studies Approach
to Law Reform was published in April 2018 by Duke University Press. She is also a coeditor
of the casebook Mary Joe Frug’s Women and the Law (4th ed.), and has written about contem-
porary legal issues arising out of Nazism.
Chris Ashford is Professor of Law and Society at Northumbria University. He has published
widely on the area of law and sexuality and legal education. He is a queer theorist and his
research has focused upon challenging normative assumptions about sexuality, particularly in
relation to public sex, barebacking, pornography and relationship structures. He is Editor of
The Law Teacher: the International Journal of Legal Education and is Consultant Editor of
the International Journal of Gender, Sexuality and Law. He was one of the founding members
of the Porn Studies Editorial Board (2014–18).
Rosemary Auchmuty is Professor of Law at the University of Reading. She teaches Property
Law and Gender and Law and has published extensively on gender, sexuality, marriage and
feminist approaches to law and history generally. Her most recent publications are Great
Debates in Gender and Law (Palgrave Macmillan, 2018) and (with Erika Rackley, eds)
Women’s Legal Landmarks: Celebrating the History of Women and Law in the UK and
Ireland (Hart Publishing, 2019).
Aneesa A. Baboolal is Assistant Professor in the Department of Crime and Justice Studies
at the University of Massachusetts – Dartmouth. Her research interests include violence
against women across intersecting identities, including race/ethnicity, immigrant and religious
minority status. Her recent work examines how Muslim people across various social identities
experience and respond to gendered and racialized violence in the United States.
Rosemary Barberet is Professor in the Sociology Department at John Jay College of Criminal
Justice, City University of New York, USA. Her research interests include cross-national
crime indicators, gender and crime and victimology. She is the author of the award winning
book Women, Crime and Criminal Justice: A Global Enquiry (Routledge, 2014). From 2014
to 2018 she edited Feminist Criminology. She represents the International Sociological
Association and Criminologists without Borders at the United Nations.
Jessica Cabrera is a PhD candidate in the Department of Sociology at UC Irvine. Her inter-
ests in Title IX were born out of her undergraduate experiences at the University of North
Carolina, Chapel Hill, where her student peers created the Title IX Movement. Currently, she
studies Title IX by bridging literatures in law, bureaucratic justice, violence against women
and the sociology of culture and organizations. Ultimately, her passion is creating social
change through the teaching and mentoring of undergraduate students.
viii
Contributors ix
Richard Collier FAcSS FRSA is Professor of Law at Newcastle University, UK. He has
published widely on law and gender, and previous books and articles have explored mascu-
linities, law and legal systems, family law, fatherhood, criminology, the legal profession and
legal education and research. Richard has recently been a Leverhulme Trust Research Fellow
engaged in studies of wellbeing and anxiety in law and is writing a book, Wellbeing, Law and
Society: Politics, Policy and Practice, for Cambridge University Press.
Sharon Cowan is Professor of Feminist and Queer Legal Studies at Edinburgh University.
She has published widely in areas relating to law, genders and sexualities; asylum and refugee
studies; critical pedagogy; and criminal law, particularly focusing on legal responses to sexual
violence. She is the co-coordinator of the Scottish Feminist Judgments Project.
Thomas Crofts is Professor in the School of Law and Department of Social and Behavioural
Science at City University of Hong Kong. Between 2012 and 2017 he was Director of the
Sydney Institute of Criminology, at the University of Sydney. His research in the fields of
criminal law, criminology and criminal justice centres on criminalisation and criminal respon-
sibility. Within these broad fields his interests are the criminalisation and criminal responsibil-
ity of children, criminal law reform and comparative criminal law.
Marian Duggan is Senior Lecturer in Criminology at the University of Kent. She researches
gender, sexuality and hate-based victimisation and related prevention policies. Marian’s recent
projects have explored the Domestic Violence Disclosure Scheme (Clare’s Law) and stu-
dents’ experience of campus-based sexual and domestic abuse. She is the author of Queering
Conflict: Examining Lesbian and Gay Experiences of Homophobia in Northern Ireland
(Ashgate, 2012) and Administrating Victimization: The Politics of Anti-Social Behaviour and
Hate Crime Policy (with Vicky Heap, Palgrave Macmillan, 2014).
Peter Dunne is a lecturer at Bristol Law School. He researches in the areas of family law, EU
law, human rights and medical law. Peter’s scholarship focuses on comparative sexual and
gender rights. He regularly publishes in leading peer-reviewed journals, and his work has been
cited by public bodies both in the United Kingdom and farther afield. From 2017 to 2018, Peter
undertook EU-funded research on trans and intersex equality guarantees in Europe. Prior to
entering academia, Peter worked as a human rights advocate in the United States and Europe.
Dr Alex Dymock’s expertise lies principally in sexuality and gender studies with a focus on
criminal law and sexual ‘deviance’. Her work draws frequently on her interdisciplinary back-
ground and combines methods from both the humanities and social sciences. Prior to joining
Goldsmiths, Alex was a Lecturer in Criminology and Law at Royal Holloway, University
of London. She completed her PhD at the School of Law, University of Reading in 2015
and before this undertook an MA in Gender and Culture at Goldsmiths, and a BA in English
Language and Literature at the University of Leeds. She converted her first degree to law at
the University of Westminster.
Silvia Falcetta is Research Associate on Paul Johnson’s programme of sociolegal research
relating to sexual orientation and human rights in the Department of Sociology at the
University of York. She has a general interest in the relationship between sexuality, human
rights, gender and judicial interpretation. Recent research has focused on the jurisprudence of
the European Court of Human Rights in respect of sexual orientation, migration and human
dignity. With Paul Johnson and Robert Vanderbeck, Silvia completed the report Religious
x Research handbook on gender, sexuality and the law
marriage of same-sex couples: A report on places of worship in England and Wales regis-
tered for the solemnization of same-sex marriage, which provides the first piece of empirical
research on religious marriage of same-sex couples in England and Wales.
Daniel Fenwick is Lecturer in law at Northumbria University. His research areas centre upon
Article 8 ECHR, personal autonomy, privacy, LGBT rights and terrorism. His research has
been published widely in leading legal journals. Indicative publications include: ‘“Abortion
Jurisprudence” at Strasbourg: Deferential, Avoidant and Normatively Neutral?’, published in
Legal Studies, and ‘The Case for a More Ready Resort to Derogations From the ECHR in the
Current “War On Terror”’, published in European Human Rights Law Review.
Helen Fenwick is Professor of Law at Durham University, was Joint Director of the University
of Durham Human Rights Centre (until 2012), and is a Human Rights Consultant to Doughty
Street Chambers. She specialises in human rights, especially in relation to freedom of expres-
sion, discrimination on grounds of sexual orientation and counterterrorist law and policy. She
is the author of Media Freedom under the Human Rights Act (OUP, 2006, with G Phillipson)
and Civil Liberties and Human Rights (Routledge, 4th edn 2007, 5th edn 2017).
Stephan Ferris is a writer, educator, speaker and activist in the LGBT, leather/kink and HIV/
STI prevention realms. He is a California licensed attorney and earned his JD from University
of California Hastings, where he served as President of the LGBTQI group OUTLAW and
as Manager of the Hastings Women’s Law Journal. Currently, Stephan is a board director at
BALIF, the nation’s largest LGBTQI Bar Association, and an ambassador for MrFriendly.org,
an international grassroots campaign with a mission to fight HIV stigma.
Siri Gloppen is Professor of Comparative Politics at the University of Bergen (UiB) and the
director of the CMI-UiB Centre on Law & Social Transformation researching law as an instru-
ment on social change. Her research focus lies in the intersection between law and politics.
It spans legal mobilisation and judicial politics, constitutionmaking and constitutionalism,
democratisation, human rights and transitional justice. The empirical focus is on Southern and
Eastern Africa, India and Latin America. She holds an adjunct position at the Chr. Michelsen
Institute (CMI), Bergen.
Professor Rosie Harding is Chair in Law and Society, Birmingham Law School, University of
Birmingham, UK and Chair of the Socio-Legal Studies Association. Her research focuses on
the place of law in everyday life, with a particular emphasis on human rights, discrimination,
disability, gender and sexuality. She is author of Duties to Care: Dementia, Relationality and
Law (2017, Cambridge University Press) and Regulating Sexuality (2011, Routledge Social
Justice; winner of the 2011 SLSA-Hart Book Prize and the 2011 SLSA-Hart Early Career
Prize), and editor of Revaluing Care in Theory, Law and Politics: Cycles and Connections
(2017, Routledge Social Justice), Ageing and Sexualities: Interdisciplinary Perspectives
(2016, Ashgate), and Law and Sexuality (2016, Routledge Critical Concepts).
Rebecca Hewer is a postdoctoral research fellow with the Centre for Biomedicine, Self and
Society at the University of Edinburgh. She has a particular interest in embodied politics,
discourse, inequality and gender. Her work uses critical social theory and critical discourse
analysis to explore questions of domination, subjecthood and the self as a social phenomenon.
Rebecca’s thesis proffered a feminist critique of the plurality of narratives which constitute
English and Welsh policies on prostitution and violence against women and girls.
Contributors xi
Anthony C. Infanti is the Christopher C. Walthour, Sr. Professor of Law at the University
of Pittsburgh School of Law. His scholarly work focuses on comparative tax law and critical
tax theory (the impact of the tax system on traditionally subordinated groups). His most recent
work includes Our Selfish Tax Laws: Toward Tax Reform That Mirrors Our Better Selves (The
MIT Press 2018) and Feminist Judgments: Rewritten Tax Opinions (Cambridge University
Press 2017, coedited with Bridget J. Crawford).
Paul Johnson is Professor of Sociology at the University of York, UK. His research is con-
cerned with a number of broad questions about the relationship between law, human rights,
sexual orientation and intimacy. He has a general interest in the role and purpose of law in pro-
moting and protecting particular kinds of sexuality and human relationships. Recent research
has focused on the jurisprudence of the European Court of Human Rights in respect of sexual
orientation, resulting in Homosexuality and the European Court of Human Rights (Routledge,
2013), the first booklength study devoted entirely to this aspect of the Court’s work.
Melanie Judge is a queer and feminist activist and scholar, and Adjunct Associate Professor
of Public Law at the University of Cape Town. She has played a prominent role in queer
and feminist advocacy and law reform in South Africa. She is the author of Blackwashing
Homophobia: Violence and the Politics of Sexuality, Gender and Race (Routledge), and lead
editor of To Have and To Hold: The Making of Same-Sex Marriage in South Africa (Fanele).
Ummni Khan is Associate Professor in Legal Studies at Carleton University and Joint Chair
in Women’s Studies, a position shared by the University of Ottawa and Carleton. Her interdis-
ciplinary research addresses sexuality, law and critical difference, including in relation to race,
class and disability. Her book Vicarious Kinks: SM in the Sociolegal Imaginary addresses the
cultural construction and legal regulation of kink. Her work has appeared in diverse journals
and collections including the Jindal Global Law Review, Feral Feminisms, Current Sexual
Health Reports and The Canadian Journal of Law and Society.
Celia Kitzinger is Honorary Professor in the School of Law & Politics at Cardiff University.
She is also Co-Director of the Coma & Disorders of Consciousness Research Centre. Trained
in psychology, she is a long-time feminist activist on issues around gender and sexuality,
including campaigning for marriage equality, and she was a colitigant in the Wilkinson v
Kitzinger (2006) equal marriage case in the UK High Court.
Alexander Kondakov is Assistant Professor at the University College Dublin’s School of
Sociology, Ireland. He is also a research fellow in the Law and Society group at the Centre
for Independent Social Research in St Petersburg, Russia. Alexander serves as the deputy
editor-in-chief for the Journal of Social Policy Studies published by the Higher School of
Economics in Moscow. For a decade, his work has primarily focused on law and sexuality
studies, more specifically on queer sexualities in Russia.
Kay Lalor is Senior Lecturer in Human Rights Law at Manchester Law School, Manchester
Metropolitan University. She is interested in the spatiotemporality of law, particularly in
relation to questions of sexual orientation, gender identity, queerness, empire and rights.
Her Leverhulme Early Career Fellowship project ‘International Relations and LGBTI rights:
Conditionality, Diplomacy and Activism’ explored the way in which different forms of legal
and nonlegal pressure are deployed internationally to advance LGBTI rights.
xii Research handbook on gender, sexuality and the law
Tingting Liu is Postdoctoral Research Fellow at the Institute for Culture and Society,
Western Sydney University. Her PhD project was supported by an Australian Government
Research Training Program Scholarship, and Chinese Society for Women’s Studies (CSWS)
Scholarships for Junior Feminist Scholars.
Alexander Maine is Lecturer in Law at the University of Leicester. His socio-legal research
focuses on Family Law and Gender, Sexuality and Law, in particular relationship recog-
nition, and the effect of law on the lived experiences of LGBTQ people. He holds an LLB
from Newcastle University and is a PhD candidate at Northumbria University School of
Law. His PhD is entitled Same-Sex Marriage and the Sexual Hierarchy: Constructing the
Homonormative and Homoradical Legal Identities and he is Co-Editor of the Edward Elgar
Research Handbook on Gender, Sexuality and the Law.
Clare McGlynn is Professor of Law at Durham University and has particular expertise in
the legal regulation of pornography, image-based sexual abuse (including ‘revenge porn’ and
‘upskirting’) and sexual violence. Working closely with policymakers, the voluntary sector
and victims, her research has helped to shape new laws criminalising forms of extreme por-
nography and image-based sexual abuse.
Maria Federica Moscati is Senior Lecturer in Family Law at the University of Sussex. An
Italian advocate and trained mediator, she holds a PhD from SOAS. Before undertaking her
doctorate she worked for Save the Children Italy, specializing in children’s rights. Her main
research interests lie at the intersection of Dispute Resolution, Access to Justice, Comparative
Family Law, Children’s rights, sexual orientation and gender identity. Her research project on
same-sex couples and mediation in the EU has been funded by the EU Commission. Maria
Federica combines academic interests with activism in support of LGBTIQ people. She is
co-director of the Centre for Cultures of Reproduction, Technologies and Health (CORTH),
and co-editor of the journal Mediation, Theory and Practice.
Trish Mundy is Associate Professor of Law in the Faculty of Law, Humanities and the Arts at
the University of Wollongong. Prior to academia, Trish practiced law for more than ten years
within the community legal sector, with a particular focus on legal issues affecting women and
children, and the provision of legal services in and to rural, regional and remote (RRR) com-
munities. Her current principal research interests concern the advancement of women within
the legal profession and access to law and justice in RRR Australia.
Alex Powell is a PhD Candidate and Graduate Teaching Fellow in Law at City, University of
London. Alex’s research focuses on the experiences of LGBT+ asylum seekers within the UK
asylum apparatus. Alex has a particular interest in how the law apprehends, modulates and
produces identities.
Lise Rakner is Professor of Comparative Politics, University of Bergen. Her research interests
cover the fields of comparative democratization, with particular emphasis on democratization,
human rights, elections and political parties in sub-Saharan Africa. Her work also extends to
political economy, with an emphasis on economic reforms, taxation, business associations,
budget processes and aid effectiveness. She holds an adjunct position at the Chr. Michelsen
Institute (CMI), Bergen.