Queer Visibility in Post-Socialist Cultures

PART I

Queer Negotiations of Post-socialist Identities

Chapter 1

Sexual Rights as a Tool for Mapping Europe: Discourses of Human Rights and European Identity in Activists’ Struggles in Croatia

Nicole Butterfield

For rights to be locally meaningful, we must interrupt the ways national and supranational bodies demand the use of rights rhetoric as a means of displaying a tie to the Euro-American-dominated community of nations.

(Patton 2002: 200)

Introduction

At the 2008 Zagreb Pride March in Croatia, one organizer of the march highlighted the sometimes violent reaction of its opponents in a speech to a small crowd of supporters in Cvijetni Trg (Flower Square) by stating that [E]very attack on a LGBTIQ person is an attack on a civilized and European, democratic and free Croatian society (Zagreb Pride 2008). Since its commencement in 2002, this march is one of the largest, most highly visible events organized by Croatian LGBT activists and their supporters.¹ Just a month after the 2008 march in July, the Croatian Parliament passed an anti-discrimination law in order to fulfill a requirement of the EU acquis communitaire for EU accession. Article 1 of this law contains a comprehensive and finite list of characteristics that identify social groups who are vulnerable to discrimination, including groups identified through the categories of gender identity, [gender] expression and sexual orientation.² According to the activists Sanja Juras and Kristijan Grđan of the LGBT organization The Legal Team of Iskorak and Kontra (from this point referred to as The Legal Team), the inclusion of these last few categories was the result of their lobbying efforts combined with political pressure from European Union institutions (Juras and Grđan 2008). I highlight these two Croatian activists’ strategies for the ways in which Europe and the European Union become markers of progress and the impetus for change.

For Croatia, the annual Pride events and legislative developments such as the passing of the anti-discrimination law are monitored, evaluated, and eventually used by international institutions as a basis for praise and/or criticism and for measuring its progress as a developing nation-state and EU candidate country. International organizations such as the International Lesbian and Gay Association of Europe (ILGA-Europe) or the International Gay and Lesbian Human Rights Commission (IGLHRC) and European institutions, which these LGBT organizations have spent many years lobbying, respond to the success or failure of such events through declarations, letters and other public statements. For example, in the Croatia Progress Report of 2008, the European Commission stated that the new anti-discrimination law, which "is aimed at full alignment with EU acquis, signif[ies] important progress (European Commission 2008). On the other hand, in the following 2009 report, the Commission criticized the government, suggesting that [M]ore needs to be done to tackle discrimination on grounds of sexual orientation. Lesbian, gay, bisexual and transgender people are subjected to threats and attacks. Many cases are not followed-up adequately by the police and prosecutors, or remain unreported" (European Commission 2009). Reports and statements such as these, as The Legal Team claims, have become valuable tools in local activists’ lobbying efforts to pressure their government to adopt legislative measures to protect LGBT individuals from discrimination.

The discourses that have emerged in the struggles for sexual human rights in Croatia often evoke European identity, European values and human rights as powerful instruments for lobbying. Through the use of these concepts, these struggles take part in (re)defining the border of Europe and what it means to be European. These discourses not only ignore a very long history of homophobia throughout Europe but also interpolate the geopolitical hierarchies that have continuously been cited comparing Europe and the so-called less developed regions of Europe, such as Eastern Europe and the Balkans (Wolff 1994; Todorova 1997). Indeed, as I will argue, advocacy for the adoption of a predetermined set of legislative changes (recently the adoption of employment anti-discrimination laws) that are set as a condition for accession and justified by the values of the European Union might become signified as another mechanism in a cultural narrative of development in which proper European culture, modernity and development originate in Western Europe (Tomlinson 2002) or, more recently, the European Union.

As an alternative, transnational struggles for sexual rights could foster debate on the types of sexual rights that local communities might need, which tend to be marginalized in transnational collaborations. Debates might emerge, for example, around the merits of focusing more on positive rights that would require governments to be proactive instead of reactive and address systematic forms of injustice rather than individual cases. A more open debate on sexual rights would avoid the tendency to predetermine the value of local activists’ work and strategies and create a space for other approaches to emerge, which could lead to other fruitful mechanisms for combating inequalities faced by individuals within diverse sexual communities in Croatia and Europe.

Here, I would like to address the criticism of many conservative, right-wing or nationalist groups that condemn any outside intervention by the European Union and international organizations. It is not uncommon to also hear the political right or more extreme nationalists in Croatia criticize the European Union or Western Europe-based transnational organizations for undermining the sovereignty of their nation-state and the integrity of their national culture and local values. For example, a debate on the necessity of amending the constitution of the Republic of Croatia to include the prohibition of discrimination based on sexual orientation and gender identity was aired on Croatian national television (Otvoreno/Open 2010). During this discussion, one participant alluded to the existence of a transnational conspiracy to promote homosexuality, an attempt supposedly orchestrated by organizations such as the International Gay and Lesbian Association and endorsed by the European Union (Otvoreno/Open 2010). This mainstream argument, presented by a Catholic theologian and columnist, is based on the flawed assumption that Croatian culture, society and values are homogeneous and that political, cultural or social movements demanding the recognition and sexual rights do not exist in Croatia. These statements do, however, indicate concerns about sexual rights that are being advocated for through discourses which (re)inscribe the cultural superiority of Europe.

What I aim to examine throughout this chapter is the possibility of advocating for sexual human rights without perpetuating these Eurocentric, homogenizing discourses which (re)produce Europe’s Others – internal and external. These strategies essentially become tools for combating sexual discrimination while perpetuating other forms of discrimination, e.g. national belonging, race and/or class. I analyse examples of the types of discourses and strategies that invoke European identity as a hierarchical differentiation, prioritize the adoption of pre-determined liberal legislative tools such as the employment anti-discrimination law and contribute to a narrative of progress by using the adoption of these laws as a measure of modernity, development and Europeanness. I examine European identity in the process of European Union expansion and outline the development of sexual rights within the European Union legal order. Then, in my analysis of strategic letters and declarations directed toward the Croatian and regional governments, I show in what ways these particular sexual rights become tools in the construction of European identity when used as instruments by EU institutions and LGBT activists in their lobbying efforts. Based on my analysis of these discourses and the strategies that focus on anti-discrimination laws, I develop a critical discussion on liberal conceptions of sexual human rights and argue that the right of protection from discrimination by itself is inadequate. First, these discursive strategies run the risk of homogenizing cultures, societies and nations and reinscribing the border between these so-called modern, developed European societies and backwards, primitive non-European cultures. Second, these limited legal strategies may not address the economic and social inequalities that exist within and among different LGBT communities.

Sexual rights as measures of Europeanness

The importance of human rights for the construction of European identity, particularly how they have been articulated within the most recent EU accession processes, has been critically analysed by many scholars (De Burca 1995; Alston and Weiler 1999; Bojkov 2004; Williams 2004; Behr 2007; Lampe 2007). Since the Single European Act of 1987 and in all subsequent treaties such as the Treaty of Maastricht 1992 and the Treaty of Amsterdam 1997, the European Union has increasingly underscored human rights as one of its core principles and as the basis for promoting democracy (Bojkov 2004: 337). The timing of this growing importance of human rights for the European Union is significant as it coincided with the collapse of the social, political and economic systems in the countries of Eastern Europe and the former Soviet Union and the processes of transition which they have undergone since, including EU accession. Justifying the expansion of the European Union, many representatives of the European Community (now known as the European Union) argued that Western Europe had a moral responsibility to help facilitate the transition of these countries to democracy (Sedelmeier 2005: 24-8). These representatives claimed that through the integration of these non-member countries into the European Community, Europe could overcome the East/West divide and ensure that security, peace and human rights would be guiding principles of the newly established governments throughout Eastern Europe (Sedelmeier 2005: 24–8).

Through the EU accession processes, often referred to as processes of conditionality (Grabbe 2002; Schimmelfennig and Sedelmeier 2004; Trauner 2009), the European Union has been able to exercise great power and influence over the countries that have applied to become members. The basic criteria for this integration process were set by the European Union in the Copenhagen Criteria of 1993 just after the widespread fall of communist regimes throughout Eastern Europe. Part of these criteria states that Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of national minorities (Copenhagen European Council 1993). By placing human rights as a central condition and key aspect of the EU accession processes, in which EU member states determine whether the criteria are met, the European Union has positioned itself as the gatekeeper of human rights and empowered itself to define what these rights are and what countries meet these standards. The inclusion of sexual rights as human rights, however, was not a concern of the European Union at the time of the creation of the Copenhagen Criteria in 1993. In fact, the European Union’s commitment to combating discrimination based on sexual orientation emerged precisely at the time when Croatia’s application for EU membership was being taken more seriously.

For Croatia, which has been a candidate for EU membership since 2004, the accession process has been longer and arguably much more arduous than for the countries that entered the EU in the fifth enlargement in 2004. The armed conflict in the 1990s that led to the break-up of former Yugoslavia, Croatia’s failure to turn in war criminals to The Hague Tribunal and Europe’s disdain for the authoritarian and isolationist politics of President Franjo Tuđman and the Croatian Democratic Party (HDZ)-led coalition (1990–1999) have all been described as factors that have delayed Croatia’s accession process (Jović 2006). In the last decade, after overcoming these larger obstacles, the European Union, which has undergone many changes as well, began to focus more on Croatia’s economic reforms, commitment to fighting corruption, the adoption of legal measures of the EU acquis and other judicial reforms defined in accession Chapter 23 on judiciary and fundamental rights. Other countries in Southeastern Europe which are still not part of the European Union such as Macedonia, Serbia and Turkey are facing similar demands.

Commenting on the European Union’s process of conditionality for these candidate countries, current director of the Open Society Institute-Brussels Heather Grabbe describes this phenomenon as the moving target problem in which the European Union is a referee as well as a player (2002: 251). In other words, the negotiating processes for EU accession are often less about negotiating and more about fulfilling requirements that may be changed at any point according to the rules laid out by the European Union. The long pre-accession period for Croatia has allowed the European Union more time to refine, consolidate and develop new requirements or mechanisms of conditionality, including measures taken to combat discrimination based on sexual orientation. These requirements for Croatia and the larger region and the unidirectional EU accession processes (re)produce a scale of development that is a declining scale of Western Europe, Eastern Europe and the Balkans. The introduction of the employment anti-discrimination directive, which protects individuals from discrimination on the basis of their sexual orientation only in their workplace, has become yet another moving target and significant as a defining measure of Croatia’s developed status.

The European Union’s new commitment to combat discrimination based on sexual orientation through legislation did not emerge, however, without a struggle. The inclusion of the anti-discrimination law in the European Union’s acquis came after LGBT organizations such as ILGA-Europe had spent many years lobbying EU institutions. Yet, after these enduring lobbying efforts, ILGA-Europe has now allied itself with the European Union in their efforts to apply pressure on national governments. In their report on the European Commission’s progress reports on potential EU member states, including Croatia, ILGA-Europe writes:

The gradually wider and self-evident inclusion of LGBT human rights in the [European] Commission’s monitoring system and in the progress reports means that LGBT rights are recognized within the European Union and that it is expected and demanded of the future members that they comply with the European values.

(ILGA-Europe 2008, emphasis mine)

The emergence of terms like European values in the documents used by some transnational LGBT organizations and EU institutions, which are then used to lobby for the rights of sexual minorities in countries outside of the European Union, (re)construct these rights as new markers of European civilization and progress. The European Union becomes a signifier of European culture as a whole. Commenting specifically on the role of ILGA-Europe’s lobbying work in the processes of EU accession, former member of ILGA-Europe’s executive board and scholar Nico Beger writes that:

[t]his practically does more than participate in the possibilities of gaining rights from a transnational institution: it creates specific meanings of Europeanness and potentially inadvertently substitutes Europe with the European Union. In this respect Europe as ideological concept and concrete institution could become more an addiction than a model for critical activism.

(2004: 158)

This new addiction to European values and identity are quite contrary to activist and scholarly literature which has criticized European and international institutions for their failure to recognize sexual rights. Echoing others’ claims about the transnational development of sexual rights as human rights (Fellmeth 2008; Marks 2006; Tahmindjis 2005; Wilson 2002), Austrian LGBT legal activist and scholar Helmut Graupner succinctly states in his work on human rights in Europe that "[W]ritten human rights law is scanty when it comes to sexuality" (2005: 109, emphasis mine). Responding to these criticisms, there have been some recommendations and resolutions issued by institutions such as the Council of Europe, the Parliamentary Assembly of the Council of Europe (PACE), the Organization of Security and Cooperation in Europe (OSCE), and the European Parliament about the importance of non-discrimination on the basis of sexual orientation. One of the first documents to address the issue of discrimination based on sexual orientation was a recommendation issued by PACE in 1981 (Council of Europe Parliamentary Assembly 1981). However, being legally non-binding documents their effects are limited, which is evidenced by the decade of virtual inactivity regarding the issue.

In the European Union, it was not until the 1990s and 2000s that larger efforts were made to consult with LGBT organizations on the issues or injustice faced by LGBT communities or to pass legal measures to address these issues. Signifying a stronger commitment in 2000, the Council of Ministers issued a legally binding directive obliging the member states of the European Union to comprehensively ban sexual-orientation-based (direct and indirect) discrimination in employment and occupation (Graupner 2005: 109).³ This directive was a milestone for the NGOs that had been lobbying for its adoption for so long. Yet, an assessment report that was published almost a decade later in which one of the European Union’s own agencies that found this directive to be limited and flawed reveals the European Union’s limited commitment.

In a report of the European Union Agency Fundamental Rights (FRA), which was established in 2007, Olivier De Schutter criticized the directive for establishing hierarchies between types of discrimination such as those based on race and sexuality (2008: 33–5). Based on his reading of the Employment Equality Directive (Council Directive 2000/78/EC) in comparison to the Racial Equality Directive (Council Directive 2000/43/EC), which was adopted at the same time, De Schutter writes that the prohibition of discrimination based on sexual orientation applies only to the workplace, whereas discrimination based on race and ethnicity is prohibited in a wider number of fields such as the provision of goods and services (2008: 33). He also points out that the requirement that an equality body be established to enforce the law was only stipulated for the Racial Equality Directive (Council Directive 2000/43/EC) and not for the Employment Equality Directive (Council Directive 2000/78/EC), which shows that there was a stronger commitment to fulfilling the former. Moreover, in addition to not having an equality body to enforce the Employment Equality Directive (Council Directive 2000/78/EC), there have been other obstacles impeding its implementation. De Schutter noted in his report published eight years after the Directive had been adopted that the European Union had still not fully assessed the national legislative changes to ensure that each country’s legislation adhered to the directive’s guiding principles (2008: 36–40).⁴ This lack of oversight is important as the successful implementation of this directive depends on the functioning of these laws at a national level.

National resistance to such policies is also evidenced by reactions to the European Union’s of Fundamental Rights (also known as the Charter) (2000), which also makes explicit reference to the legal protections of those citizens who face discrimination based on their sexual orientation. This document only recently became legally binding with the adoption of the Lisbon Treaty (European Union 2007), which came into force on 1 December 2009, and so its effects are yet to be seen. Article 21 of the Charter explicitly states that discrimination based on sexual orientation is prohibited (European Union 2000). However, Philip Tahmindjis points out that the Charter only applies to European institutions and to member states in their actions within the scope of European Law, and not to domestic law (2005: 15). This aspect of the Charter is particularly relevant in the struggles for the right of same-sex couples to marry or to have legal recognition of their families, which is not prescribed within EU law. Based on the unfounded fear that this Charter might somehow require countries to allow same-sex couples to marry, Poland underscored this limitation of the Charter, along with the United Kingdom and the Czech Republic, in a special protocol added to the Lisbon Treaty.⁵ This again supports observations that the granting of human rights and more specifically sexual rights depends greatly upon the will of national bodies (Fellmeth 2008; Graupner 2005; Grigolo 2003).

In addition to formal issues such as the scope of legal mechanisms and problems around their implementation, the European Parliament has, in fact, emphasized the growing problem of homophobia in the European Union and adopted several resolutions calling for member states and EU institutions to do more to combat it (European Parliament 2007; 2009). In the 2007 resolution, the Parliament draws the attention of other EU institutions and all member states to disconcerting examples of homophobia such as the increase of homophobic bullying in secondary schools in the UK, the violent bludgeoning to death of a gay man in the Netherlands or homophobic hate speech made by government officials in Poland (European Parliament 2007). In its more recent 2009 resolution on the situation of fundamental rights in the European Union, the Parliament states that discriminatory comments against homosexuals by religious, social and political leaders fuel hatred and violence, and calls on the relevant governing bodies to condemn them (European Parliament 2009). Furthermore, it cites fundamental rights as the foundations of democracy and emphasizes the role which local and regional authorities can play in the promotion of such rights (European Parliament 2009). However, as Grianne De Burca argues, although the European Parliament uses the language of rights most widely in comparison to other institutions of the European Union such as the Council, which is the main decision-making body, it is also the weakest in terms of its legal power to pass legislation that would require national bodies to take concrete action (1995: 36–7).⁶

These assessments made by European Union institutions and scholars reinforce local activists’ own criticisms and pessimism about implementing their newly passed anti-discrimination law in Croatia. The current political climate in Croatia has been shaped by the ruling conservative parties, which are quite resistant to the recognition of sexual rights even though they proposed these formal rights, if only to fulfill EU requirements. This sentiment was expressed by many activists in my informal discussions with them. Also, in their 2006 report The Legal Team also explicitly states […] that the Croatian Government produces general documents that prescribe the protection of human rights, mainly with the aim of satisfying international institutions, but it does not have any real intention of acting in this direction […] (Juras and Grđan 2006: 18). Later, in the 2009 report, the Legal Team again underscored the Croatian governments’ contradictory stand on sexual rights and its affect on the implementation of these legal mechanisms.

The [LGBT] community is especially discouraged by homophobia within institutions, even within the Croatian Parliament which passed the above laws but whose members publicly use hate speech aimed against sexual and gender minorities, breaking these same laws and showing the public how little they value the same laws they raised their hands in favour of in the hope of endearing themselves to the international community.

(Juras 2009: 5)

The idea that the passing of these legislative measures or sexual rights could be used to endear international institutions only makes sense in a context in which these rights are viewed as progressive and indicators of development. Several scholars have argued precisely the point that sexual rights, only more recently recognized as human rights, have become increasingly used as markers of progress and development to differentiate between European and non-European identity and values (Binnie 2004; Stychin 2004; Haritaworn, Tauqir and Erdem 2008: 79). On the one hand, these rights contribute to redefining and expanding the general field of human rights to encompass sexual rights, albeit quite slowly and with limited achievements. On the other hand, they are also now part of the expanding human rights discourses which differentiate between Europe or the West and its inferior Others. As Jon Binnie explains, The logic goes something like this: you are less developed than us because you treat your gays badly. Thus the western state becomes the guarantor of lesbian and gay rights versus the threat constituted by the savage brutal other (2004: 76). In addition, LGBT organizations in the European Union have utilized the leverage of the European Union in their collaborative work with organizations that are located outside of the EU. A representative of a Dutch LGBT organization explained to me how it is in their interest (presumably the organizations and its constituency) to ensure that homophobic governments, like Croatia’s, are reformed before they have access to decision-making positions in the European Union because their membership may threaten any progress that has been made in establishing sexual rights in the European Union.⁷

In order to understand how this perception of the European Union as the protector of LGBT rights in Europe has emerged, it is worthwhile to examine more closely some of the ways this idea has been discursively produced. Therefore, I turn my attention in the following section to a few more specific examples and show in what ways the statements of European Union institutions, international NGOs and local LGBT activists intertwine, cite each other and (re)produce sexual rights as inherently European.

More discourses of European identity, values, and progress

In a letter to the Croatian President and Prime Minister in response to violence at the Zagreb Pride in 2007, ILGA-Europe and IGLHRC, wrote:

As an accession country to the European Union, Croatia is explicitly obligated to protect LGBT people under the EU Parliament resolutions against homophobia and the Copenhagen political criteria on the respect for human rights and protection of minorities. Beyond the formal legislative developments, Croatia should also embrace the values of the European Union, which include respect for human diversity as reflected by different sexual orientations and gender identities.

(ILGA-Europe and IGLHRC 2007)

Using the Croatian government’s desire for EU membership as leverage, ILGA-Europe and IGLHRC cite Croatia’s obligation to the EU Parliament and the Copenhagen Criteria. Although these references to European Union documents appear as powerful rhetorical tools, they are actually quite weak as evidence of European Union’s legal commitment. As I have already pointed out, the EU Parliament’s resolutions are not legally binding. In fact, these resolutions were adopted many years after the EU Employment Equality Directive that legally requires EU member states to combat discrimination based on sexual orientation. These resolutions emphasize the EU member states’ failure to ensure this right that was established through the directive passed in 2000 to which they are subject. In the 2009 resolution, the Parliament wrote that it

[d]eplores the fact that member states refuse EU scrutiny of their own human rights policies and practices and endeavor to keep the protection of those rights on a purely national basis, thereby undermining the active role played by the European Union in the world as a defender of human rights and damaging the credibility of the EU’s external policy in the area of protection of fundamental rights.

(European Parliament 2009)

Regarding the Copenhagen Criteria as a basis for Croatia’s obligation to protect minorities, these organizations have also greatly exaggerated the reach of these original criteria that were established in 1993 at a time when very little was said or done to protect sexual minorities. This is also evidenced by the fact that the European Commission only recently mentioned the status of sexual minorities in their reports on Croatia regarding their progress for EU accession such as the 2009 report in which the Commission states more needs to be done to tackle discrimination on the grounds of sexual orientation (European Commission 2009).

The most important statement which I have emphasized here is the one that Croatia should also embrace the values of the European Union. Following the previous sentences in which these Croatian authorities are reminded of their so-called legal obligation, these organizations argue that, in fact, Croatia must strive for a more profound transformation in which Croatian society embraces the values of the European Union, indicating they have not done so. This rhetorical leap that signifies these legal obligations as a reflection of larger societal values fortifies the European Union’s status as morally superior position in comparison to other regions of Europe.

A 2010 resolution text adopted by the European Parliament regarding Croatia’s accession process to which local and international LGBT organizations make reference provides another concrete example of how European countries’ treatment of sexual minorities has become a measure of political progress (European Parliament 2010). In this legally non-binding text under the heading Political Criteria, the European Parliament

[c]alls on the Government to provide training for the judiciary on the implementation of the Gender Equality Law (GEL) and the Anti-Discrimination Law; notes that, so far, not one judicial decision has been based on either of those laws; […] notes the progress made by Croatia in the area of hate crime legislation and encourages the government to make further efforts to ensure that an appropriate legal framework is in place, as well as to address discrimination against sexual minorities, including thorough investigation of hate crimes and threats.

Furthermore, the Parliament

[e]xpresses its concern at the resentment against the LGBT minority in Croatia, evidenced most recently by homophobic attacks on participants in the Gay Pride parade in Zagreb; urges the Croatian authorities to condemn and prosecute political hatred and violence against any minority; invites the Croatian Government to implement and enforce the Anti-Discrimination Law.

(European Parliament 2010)

In the first sentence of the first amendment cited here, the Parliament expresses its concerns about the competence of judicial bodies in Croatia to implement the Anti-Discrimination Law and their failure to use the new law. Addressing the adoption of hate crime legislation, the Parliament praises Croatia on its progress but simultaneously urges Croatian authorities to take appropriate actions to ensure that these laws are implemented. In this sense, the European Parliament is applying the political pressure that the local activists have lobbied for. Juras, as a representative of the Lesbian Group Kontra, reacted to news of this resolution immediately by posting an open letter on the organization’s website (Juras 2010). In the letter she draws attention to the resolution and the concerns of the European Parliament as support for Kontra’s demands that state institutions more consistently enforce laws that refer to the sanctioning of hate crimes and discrimination and to make changes to criminal law to have better sanctions against hate speech and hate crimes in the Republic of Croatia (Juras 2010). She also points out in the first sentence of this letter that the European Parliament made similar statements calling for the protection of sexual minorities in resolutions regarding the accession processes of Macedonia and Turkey (Juras 2010). Like Croatia, Macedonia and Turkey are candidate countries. However, Croatia is much more likely in the near future to finish its accession process, whereas Macedonia and Turkey are not. What Juras implies is that if Croatia does not do a better job, they appear no more prepared to join the European Union than their southern neighbours Macedonia and Turkey.

A similar comparison between countries in the region was made by international activists in their efforts to lobby national governments. A letter written in 2009 by ILGA-Europe and IGLHRC shows how Croatia can be positioned within the