REVIEWARTICLE

Families, Partnerships and Law Reform in the European

Union: Balancing Disciplinarity and Liberalisation
Clare McGlynnn
Carl F. Stychin, Governing Sexuality: The Changing Politics of Citizenship and
Law Reform, Oxford: Hart Publishing, 2003, x 162 pp, hb d32.00.

INTRODUCTION

Carl Stychins Governing Sexuality ^ The Changing Politics of Citizenship and Law
Reform, is a collection of essays on the general theme of sexual citizenship and
law reform in Europe.1 The essays, published elsewhere over the previous four to
ve years and reworked for publication in this book, are theoretically informed
studies of law reform and legal struggle (p 5). Stychin challenges assumptions
about the value of liberal law reforms which promote partnership and other
family rights and expresses concerns about the disciplinary nature of rights discourse and the ways in which rights govern our sexuality and ways of living.
Stychins analysis is perceptive, provocative and demands careful consideration.
The aim of this review, however, is to suggest that while we must take heed of
Stychins concerns, we must also recognise the value of progressive law reform in
expanding the concept of family, reworking its meanings and associations, and
embracing the diverse nature of family practices. This argument will be made
with a particular focus on the laws of the European Union, a eld of scholarship
in which Stychins theoretical and thought-provoking arguments are much
needed. Before expanding on this argument in more detail, the following section
outlines Stychins analysis.

CHALLENGING PROGRESSIVE LIBERALISM

Stychin begins by asking several questions: In what ways are the politics of same
sex sexualities changing, particularly in the United Kingdom, but more widely,
in the context of an integrating European Union? What are the implications for
law reform strategies around homosexuality, in an era in which those strategies
seem to be increasingly destined for success? And once law reform is achieved,
what remains of a politics of sexuality? At that point, should we be content with
n

Department of Law, University of Durham.

1 C. Stychin, Governing Sexuality:The Changing Politics of Citizenship and Law Reform (Oxford: Hart
Publishing, 2003). Page references in the text are to this book.

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Clare McGlynn

how our sexualities are governed through law and, if not, what directions should
activism take? (p 1). These are the principal questions which the book sets out to
examine and they also identify the perspective from which Stychin approaches his
material.
In essence, Stychin sees a rising tide of liberalism washing away dierence. He
considers political activism to be increasingly focused on assimilation and law
reform, at the expense of a broader agenda. In other words, while activism around
same sex sexualities has long been marginalised politically, it is now mainstream
and this perhaps threatens the identities created in the ght of resistance. He states
that the old certainties about gay politics no longer always hold true (p 2). The
role of law is changing.While law reform strategies and analyses have long been
focused on the anti-gay legislation of many states, Stychins focus is on theliberal
and progressive law reforms in the UK and EU member states and the ways in
whichsexuality is governed within such a climate of liberalisation (p 2, emphasis in
original).
We all know that repressive criminal laws against, for example, gay male sexuality, are a bad thing and that campaigning to reform such laws is necessary. As a
result, it is often also taken for granted that law reforms ending discrimination
against lesbians and gay men in other arenas, for example in relation to marriage,
are also always positive and welcome. But this is what Stychin wishes to challenge. He contests the assumption that recent, progressive law reforms in the
arena of same sex sexualities are always a good thing: hence his introductory
questions about the future of a politics of sexuality and about the appropriate
focus for activism. Stychins context is that of Europe, with case studies covering
Britain, France and Romania as well as the European Union more generally. He is
keen to examine the European Union as arich source of material for the study of
the role of law in the regulation of sexualities, when the literature in this eld is
centred on the North American experience (p 2).
In theoretical terms, Stychin is ultimately concerned with the role of law in
disciplining the self. His premise is that while law can operate as a means of
repression and social control, as in the enforcement of anti-gay sex laws, legal discourse also operates in a more subtle, disciplinary mode, by encouraging, in an
innite variety of ways, individuals to conform to how the law constructs proper
^ even civilized ^ behaviour (p 3). Such proper behaviour is constructed in the
context of the hegemony of neoliberal economics and emphasises the privatisation of responsibility for others and the withdrawal of the state from many
aspects of care (p 3). Ultimately, therefore, Stychin is cautious and at times critical of the value of liberal law reform and of activist strategies which increasingly
place law at the centre of political struggles (p 3). In other words, he says, he does
not subscribe wholeheartedly to the idea or ideal of liberal legal progress (pp
3-4). Stychin says he may be aspoiler at the party to celebrate progress (p 4).
Stychins theoretical foundation is the concept of sexual citizenship which he
elaborates in the rst chapter. He argues that historically citizenship has been constitutively built on a series of exclusions through which individuals could be
included as citizens or excluded as non-citizens. Stychin contends that citizenship
remains anappealing concept in the context of sexual identity politics, although
he also considers how it can prove alimiting, disciplining and regulatory concept,
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particularly in the domain of sexuality (p 7). The fact that sexual citizenship in
the EU has bothpotential and limitations, he continues, is acentral claim of his
book (p 8). This exemplies the balanced approach of Stychins analysis. He
eschews grand claims or statements regarding rights, citizenship or any of the
other concepts or law reforms that he discusses. He argues that the possibilities
of European citizenship lie in the potential to synthesise rights and belonging,
to realise a more active and participatory citizenship and ultimately a citizenship
which is based more onanity rather than individual identity.Thus the EU context oers the potential for claims which might originally appear to be passive,
private and even disciplined to become more active, public, political and even
democratic, despite the largely closed and elitist methods of law reform within
the EU (p 17).
In subsequent chapters, Stychin elaborates his theme of the possibilities and
limitations of European citizenship in the context of the politics of sexuality.
Chapter 2 examines the discourse of progressives in the UK who demanded law
reforms relating to the homosexual age of consent and the repeal of local government laws prohibiting the promotion of homosexuality or pretended family
relationships.Thus Stychins focus is not on the pros and cons of the specic laws,
but on how those advocating reform articulate their arguments and what this
means in terms of the type of sexual citizenship on oer to lesbians and gay men.
In this context, Stychin focuses on the concept of family and how this is
deployed in law reform, rights and citizenship discourse. He argues that progressives have adopted the language of family in order to promote reform but that this
has not proved to be a strategy whereby the family is redened or radicalised
(p 33). Indeed, he suggests that the traditional heterosexual family is recentred in
the debates (p 33). In these discussions, lesbians and gay men are not placed within
their families of choice, but back whence they came in their families of birth
(p 34). The discriminatory attitudes towards lesbians and gay men are re-written
as an attack on the traditional nuclear family, because such attitudes and discrimination undermine the biological family. Thus, reformers argue that in fact law
reform will strengthen the traditional family as there will be less force to escape
families.
Stychin argues that there has been a desexualisation of lesbians and gay men, an
emphasis on the similarities with heterosexuality, rather than dierence. He
acknowledges that this is partly a rhetorical strategy as law reformers seek to
answer the claims of homosexual hypersexualisation and perversion (p 36). Ultimately, Stychin argues that despite the importance of the discourse of equality
rights, the use of the language of equality is matched by the deployment of the
theme of social inclusion plus responsibility (p 40). He quotes one reformer as
saying that the law needs reform so that we will make them [homosexuals] part
of civil and civilized society (p 40).This is the disciplinary eect of the law which
Stychin highlights. Inclusion, he suggests, is premised on the existence of longterm relationships, monogamy and a denial of ones sexuality (p 40). This is the
construction of the good homosexual, no longer the closeted, lone gure, but
now the desexualised member of the nuclear family who engages in long-term
relationships and does not proselytise. Stychin argues that, through this analysis,
he demonstrates the limitations to the ideal of liberal progress (p 46). Thus, legal
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liberalisation leads also to normalisation and banalism (p 46). Liberalism and

rights, while being enormously seductive (p 47) have their clear limitations.
Nonetheless, the chapter concludes with the statement that he does not want to
diminish the ways in which it [inclusion] may also be enabling ^ a hint, again, of
his balanced approach.
The focus in Chapter 3 is on the adoption of the pacte civil de solidarite (PACS) in
France. Stychin argues that the development of PACS, a form of partnership
rights for those outside the traditional married family, must be viewed within
the context of local struggles around the dominant discourse of French national
identity, that of republicanism (p 49).This analysis, centring on the local, Stychin
argues should raise scepticism about simple tales of globalisation of legal struggles
around sexuality (p 50). He argues that through PACS, same sex sexualities are
incorporated into concepts of republicanism; they are assimilated and made
banal. He notes that this normalisation has been seen as a good thing in France
(p 72). Thus, while PACS may be entered into by many dierent couples, heterosexual and same sex, and this might be seen as evidence of the acceptance of difference, of a universal institution being exible enough to accommodate
dierent citizens wants (p 74), in fact Stychin argues, PACS seems unlikely to
undermine the republican order. Thus, contrary to the claims of opponents, who
criticised PACS on many grounds, including it being part of an increasing globalised threat to the equality of republicanism, Stychin argues that in fact it combines the universal and particular and represents a peculiarly French compromise.
In other words, while PACS may be welcomed by many as a being a celebration of dierence, a means of recognising a variety of forms of relationship, Stychin characterises it as part of an assimilationist project that normalises same sex
sexualities, rendering them safe, conned and part of the state. Stychin is arguing
that while it may seem revolutionary to have a new form of state-sanctioned relationship that grants gay and lesbian partners certain rights similar to those of married heterosexual couples, in fact it is not. He is suggesting that this is a reform
which in being so exible as to include same sex, heterosexual partners and other
forms of relationship, in fact looses any transformatory potential.
This is an analysis which Stychin continues into Chapter 4, which examines
partnership rights in EU law after Grant.2 In this case, the European Court of
Justice upheld the legality of employment benets which were granted to an
employees unmarried heterosexual partner, but not to a same sex partner. The
Court held that there were no provisions prohibiting discrimination on the
grounds of sexual orientation in EU law at that time, and that the discrimination
in the case did not amount to sex discrimination.When rst published in 2000,
Stychins analysis of the Grant case introduced a novel and thought-provoking
approach to the decision.The judgment of the Court of Justice had been criticised
for failing to extend equality rights to same sex partners and for continuing to
isolate and denigrate same sex relationships. Stychin, on the other hand, portrays
Grant as an attempt to replicate traditional heterosexual partnerships, albeit without the imprimatur of formal marriage and with a same sex twist.The aim was to

2 Case C-249/96 Grant v SouthWestTrains [1998] ECR I- 621.

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t the relationship in Grant with the ideology of thefamilyprivileged by EU law,

especially the model of family dependent on a breadwinning,family wage earner
(p 83). The problem with this strategy, Stychin argues, is that the lesbian or gay
subject is normalised (pp 84 -85). A success in Grant would have seen the extension of marital-type perks to stable same sex couples. It would have tted well
with the ideological grounding of EC rights discourse and in particular the
nuclear family and privatised responsibility within the private sphere (p 86).
There would have been no immediate cost to the state, for the outcome would
have been a recognisable model of partnership suggesting economic dependence
on a breadwinner and the cost of the perk is borne by a private, contractually
regulated employment relationship (p 86).
Stychins analysis of Grant is used to illuminate the wider limitations and distortions which rights politics can foster when it is privileged so centrally within
an activist strategy (p 75). He advocates an engagement of activists with democratic institutions and politics, coupled together with redistribution (p 76). Stychins position is this: he considers that rights have their pragmatic uses
depending upon the precise context, but that rights struggles should not be
divorced from broader social, political and economic movements for progressive
change (p 78). He goes on to note that the case studies in his book are generally
tilted more towards the disciplinary function of rights (p 76).
Stychin criticises the fact that when activist strategies engage with law, this
seems to require constructing relationships which replicate monogamous, heterosexual cohabitation as an ideal to which lesbians and gays can successfully aspire.
Furthermore, a strategy of recognition fails to address underlying issues of structural inequality. Therefore, some recognition of same sex partnerships does not
alter the fact that rights discourse around sexual orientation will benet most those
for whom there are no other structural, identity-based impediments to the realisation of substantive equality, in other words, gay men (p 87).Thus, lesbian women
will still face the structural barriers facing all women and therefore such rights
and recognition claims must be considered at best a modest part of a wider strategy of social change (p 88).
Stychin accepts the potential that rights discourse does oer in challenging
existing attitudes and practices (p 90). He notes the positive eect in the UK of
the Grant litigation - despite the fact that it was ultimately unsuccessful - in drawing attention to the possibilities and potentialities of engaging with European
citizenship. He continues, however, that the problem is that rights discourse
seduces its users to believe in its totalizing potential as a political strategy (p 90).
He urges greater engagement with democratic structures and participation and
ultimately criticises the Grant litigation as having abstracted rights from any form
of democratic politics (p 91).
In Chapter 5, Stychin examines sexual citizenship and law reform in the context of mobility and migration within Europe. He considers whether legal recognition demonstrates progressive change in social attitudes, seeing an analogy
between the illegal alien and the homosexual (p 99). Both are outside the
bounds of normalcy and of law (p 99). Both are constructed as threats to the
coherence and boundedness of the national body. Opening the door to homosexuality is seen as leading down a slippery slope of vices threatening the
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existence of the heterosexual family, whereas extended migration, of an extended

family, threatens the cultural heritage of the nation state (pp 99^100). Stychin
argues here that the extension of free movement rights to, and the consequent
recognition of, lesbians and gay men is linked to the privatisation of nancial
responsibility within the family, in whichgood relationships are those stable relationships which are supported because they are perceived to be the basis of good,
responsible citizenship (p 103). In other words, while there is greater recognition
of same sex sexualities, this is only in terms of partnership recognition which
demands some homogenisation with heterosexual norms.
Stychin notes that liberal law reform appears to be occurring with some
inevitability in the eld of migration law (p 104). But with recognition comes
responsibility, in the form of the privatisation of all costs of the relationship.Thus,
liberal law reform occurs, but only within a strict set of constraints as to the
requirements which are imposed as the price of recognition for the good homosexual (p 107). Rule changes, therefore, may allow reunication of partners, but
the emphasis seems to be on the importance of stable relationships for citizenship,
rather than on broader human rights bases (p 108). Stychin concludes that the
processes of liberal legalisation through recognition seem here again to come
at a price, that of putting the homosexual in place and emphasising privatisation of responsibility for oneself and ones life partner (p 111). Stychin
admits to their being no easy answers in the absence of open borders. But he
argues that his analysis shows that law and the language of citizenship prove
again to be both constraining and enabling in their deployment around issues of
sexuality (p 113).
In his nal chapter, Stychin turns his attention to law reforms in Romania, a
country hoping to join the EU, which has recently decriminalised same sex sexual
relations and prohibited discrimination on the grounds of sexual orientation. Stychin is interested in how these legal reforms were promoted on the basis of
human rights norms and as constituting an essential pre-requisite to possible
future membership of the EU (p 116). He charts how the decriminalisation campaign involved considerable pressure from EU institutions, as well as EU member
states, non-governmental organisations and the Council of Europe. Stychin states
that [w]ithout question, pressure from abroad - but particularly from EU institutions ^ has forced legal change (p 121). His concern is that law reform in Romania
has not been a bottom-up process, but top-down and driven by external pressure.The result, he argues, is that any relationship between legal and social change
is tenuous and it is unlikely that most Romanians will feel any sense of ownership of law reform (p 136). For some, he argues, it may indeed reinforce feelings
of scepticism and bewilderment at European values (p 136).
Stychin concludes his book by outlining future areas of enquiry which follow
on from his analysis. He suggests, rst, that a close watch should be kept on
what a European homosexual family might actually look like as it develops in
EU law and politics, especially in view of the emerging family law agenda of
the Union (p 139). He also considers questions of the nature of social movements
across borders and the nature of activism in the context of the dominance of
human rights norms. He wonders whether we are witnessing the depoliticisation of sexuality and the disappearance of the modern homosexual, both
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moves which he would regret (p 140). Finally, Stychin concludes that he does not
think he has written a pessimistic book, a point to which I shall return in the
conclusion.
BALANCING DISCIPLINARITY AND LIBERALISATION

It can be seen that one of Stychins central concerns is the privileging of the
family in law and social policy, the eect of which, he suggests, is that if lesbians
and gay men are to avail themselves of the legal and social rights to which many
heterosexuals are automatically entitled, assimilation with heterosexuality is
necessary. In essence, he states that he is fairly sceptical of an activist agenda which
places partnership entitlements in certain forms at centre stage (p 4). He takes this
approach because of his concern that the disciplinary, normalising function of
liberal law reform may constrain us, by acting to limit the variety of ways of living which sexual dissidents have developed and thereby limit our ability to
recognise that we can construct our lives so as to defy the categories which law
traditionally has sought to impose on us (p 4). Thus, Stychins analysis is that the
family is not being redened or radicalised, but that in fact what we can see is a
re-centring of the heterosexual married family.
Disciplinarity and recent developments in EU law

Since Stychin wrote his essays, there have been a number of law reforms within
the EU which could support his analysis. For example, new legislation in the eld
of free movement, immigration and asylum has been adopted which has features
of the disciplinarity and re-centring of the traditional family which he challenges.3 The new Free Movement Directive, for example, does refer to partnerships besides heterosexual married spouses, stating that ahost member state shall,
in accordance with its own national legislation, facilitate the entry and residence
of the partner with whom the Union citizen has a durable relationship, duly
attested.4 However, in making a decision as to whether to permit entry, the
Member State is to undertake an extensive examination of the personal circumstances of the partners.5 The preamble indicates that in examining such cases,
member states should take into consideration the relationship with the Union
citizen or any other circumstances, such as their nancial or physical dependence
on the Union citizen.6 We can see here elements of progressive liberal law reform
^ the recognition of partnerships outside marriage ^ but also the disciplinarity,
the extensive examination of the nature of the relationship.

3 See further M. Bell,We are Family? Same Sex Partners and EU Migration Law (2004) 9 Maastricht
Journal of European and Comparative Law 335^355.
4 Directive 2004/58/EC of the European Parliament and of the Council of 29 April 2004 on the right
of citizens of the Union and their family members to move and reside freely within the territory of
the member states, OJ L 229/35, 29.6.2004, article 3(2).
5 ibid article 3(2).
6 ibid preamble para 6.

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Similarly, the Family Reunication Directive provides that member states may
authorise the reunication of unmarried partners in a duly attested long-term
stable relationship.7 Again, we see liberalisation with the recognition of unmarried partners, but also the fact that to bring themselves within the terms of the
directive, they must conform to the norm of a long-term stable relationship. In
addition, while the Family Reunication Directive does recognise the existence
of unmarried partners, it also seeks to re-arm the importance of the traditional
married family by stating in the preamble that the rights contained in the directive
are to be centred on the nuclear family, that is to say the spouse and minor children.8 This was the rst reference in any EU legislation to the concept of the
nuclear family. In this light, it could be argued that liberal law reform, recognising partnerships outside of marriage, has been achieved, but only at the expense
of, rst, a re-assertion of the importance of thenuclear family and, secondly, considerable intrusion into the privacy of unmarried partnerships. Liberals have been
oered the sop of recognition, but the rights in fact granted are minimal and
come with clear disciplinary eects by requiring assimilation to the traditional
married norm.
A similar analysis can be oered in respect of recent reforms in the eld of antidiscrimination law. Since Stychin was writing, the EU has adopted the General
Framework Directive which prohibits, amongst other things, discrimination on
the grounds of sexual orientation in employment.9 Accordingly, the discrimination in Grant, the subject of Stychins analysis in Chapter 4, would now be contrary
to the directive and unlawful.10 In some ways, of course, this just conrms Stychins
argument. His analysis was that while the judgment of the Court of Justice was
roundly criticised on the basis that it perpetuated discrimination against lesbians
and gay men, in practice Grant involved a factual scenario which reproduced the
heterosexual paradigm of partnership and family. Thus, for this discrimination
now to be unlawful means that the same sex partnership, because of its equivalence
to heterosexual partnership (the necessary comparison required in equality law), is
now recognised and discrimination against the unmarried gay or lesbian partnership is prohibited. Such reforms may also be said simply to reinforce the dominance of coupledom and the granting of employment benets to couples.
Furthermore, as with the laws relating to free movement discussed above, these
reforms may also be criticised on the basis that they may give with one hand, but
take back with the other.While discrimination between unmarried heterosexual
and gay or lesbian partners is now prohibited under the General Framework
Directive, the preamble to the directive includes the statement that: This Direc-

7 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunication, OJ L 251/
12, 3.10.2003, article 4(3).
8 ibid preamble para 10.
9 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal
treatment in employment and occupation, OJ 2000 No. L303/16.
10 For a detailed analysis of the changes brought about by the General Framework Directive, see M.
Bell, Sexual Orientation Discrimination in Employment: An Evolving Role for the European
Union in R.Wintemute and M. Andenaes (eds), Legal Recognition of Same Sex Partnerships (Oxford:
Hart Publishing, 2001) at 653^676 and M. Bell, Anti-Discrimination Law and the European Union
(Oxford: Oxford University Press, 2002).

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tive is without prejudice to national laws on marital status and the benets dependent thereon.11 This appears to suggest that any benets granted to married
employees do not come within the scope of the directive.12 Employers may, therefore, legitimately oer perks and benets to married couples, excluding unmarried partners, whether heterosexual, gay or lesbian. Accordingly, therefore, while
some discrimination is outlawed, the importance of marriage is re-asserted, as is
the granting of employment-related benets to married couples.
And while it might be thought that the termmarriage will inevitably include
same sex marriages from the Netherlands, Belgium and Spain, this may not be
the case. In the recently adopted Free Movement Directive, the term spouse is
employed, but the European Commission has stated that it should be concluded
that same sex spouses do not yet have the same rights as traditional spouses.13 This
is quite irrational, even if not surprising. It also demonstrates new levels of textual
confusion: the European Commission admits that same sex married partners are
spouses, but just not traditionalspouses.
Stychins analysis, and the recent developments outlined above, do indeed
demonstrate a problem with the prioritisation of families and partners for many
legal and social rights. If, for example, all EU citizens and legally resident third
country nationals were able to travel, live and work throughout the EU there
would be no need for detailed regulation about the rights extended to the families
of those who are entitled to move and take-up work, there would be less need for
a tortuous denition of family. Equally, if the couple, especially the monogamous, long-term, interdependent couple, were not favoured in social policy, there
would be little need to determine which couples or relationships could come
within current denitions of marriage,partnership or spouse. The dominance
of family and partnership in law and social policy does indeed marginalise those
who are not in such relationships. There are, therefore, strong grounds on which
to criticise a focus on reforming the concept of family and the extension of partnership rights to gay and lesbian partners. This is an argument that is echoed by
Amy Elman who argues that the matrimonial bias of EU law and policy, its heterosexism, would be more eectively undermined through its repudiation, rather
than through an extension of its privileges to those who can be assimilated to the
heterosexual married family.14
A liberal perspective on recent developments

There is also another way of interpreting recent developments in EU law. For the
rst time, in the recent directives in the eld of free movement, immigration
and asylum, the existence of unmarried partnerships and in particular registered
11 n 8 above, preamble, recital 22.
12 Though there may be scope for a claim of indirect discrimination, see further M. Bell Sexual
Orientation Discrimination in Employment: An Evolving Role for the European Union, n 10
above.
13 Communication from the Commission, Free Movement ofWorkers ^ achieving the full benets and potential, COM (2002) 694 nal, 11.12.2002 at 8.
14 R. A. Elman,The Limits of Citizenship: Migration, Sex Discrimination and Same sex Partners in
EU Law (2000) 38 Journal of Common Market Studies 729^749 at 745.

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partnerships has been recognised. This is an important symbolic development.

The EU has moved on from a time in which it only recognised heterosexual marriage, to providing legislative condonation of those relationships outside marriage
which are deemed familial. Further, in the Family Reunication Directive a distinction is drawn between unmarried partnerships, for which some evidence of
the stability of the relationship is required, and registered partnerships for which
the legitimacy of the relationship is presumed, just as with heterosexual marriage.
This is symbolically important in that registered partnerships are now endowed
with a status above heterosexual unmarried partnerships, albeit that they do not
have the status of marriage. The European Commission, in its explanatory document, states that the distinction made between unmarried partners and those in a
registered partnership means that, in relation to the latter, it is not a condition of
entry that the relationship is stable and long-term because the partnership is registered.15 The mere existence of a registered partnership, as with heterosexual marriage, will be enough to satisfy the rules relating to such partnerships, obviating
any need to enquire into the nature of the relationship.
While this recognition is indeed only symbolic ^ member states are not
required to admit registered partners ^ it is arguable that these reforms represent
a rst step on the way towards greater recognition and equality of treatment. It
also obliges those member states which have yet to take steps to recognise same
sex relationships to take notice that at the European level, unmarried partnerships
are to be recognised (albeit in limited circumstances) as families. As internationally it becomes more common to accept unmarried or registered partnerships as
the norm, the more recalcitrant member states may take steps to align their laws
with the other member states (albeit inlocal ways withlocalsolutions). This is a
slow, rather unexciting and incremental process, but it is progress towards treating
lesbians and gay men equally with heterosexual people.16 It is, of course, this very
concept of being treated equally that is of concern to Stychin and others who
express concern at activist and law reform strategies based on such recognition
claims. However, to my liberal mind, for so long as law and social policy does
privilege partnerships, it remains unjustiably discriminatory to restrict rights to
heterosexual couples. This does not mean proselytising in favour of marriage or
partnerships, but is simply a recognition that to exclude lesbians and gay men is to
perpetuate a discrimination which is no longer justied. As Tom Stoddard has
stated in arguing in favour of same sex marriage, the issue is not the desirability
of marriage, but rather the desirability of the right to marry.17

15 Amended proposal for a Council Directive on the right to family reunication, COM (2002) 225
nal, 2 May 2002 at 7.
16 For an argument that there is a standard sequence of steps which take states from a position of the
criminalisation of gay conduct to, ultimately, same sex marriage, see K.Waaldijk,Civil Developments: Patterns of Reform in the Legal Position of Same Sex Partners in Europe (2000) 17 Canadian Journal of Family Law 62^88 and Small Change: How the Road to Same Sex Marriage Got
Paved in the Netherlands, inWintemute and Andenaes, n 10 above at 437^464.
17 T. Stoddard,Why Gay People Should Seek the Right to Marry, inW. B. Rubenstein (ed), Sexual
Orientation and the Law, (St Paul, MI:West Publishing, 1997), quoted in D. Richards,Introduction ^
Theoretical Perspectives, inWintemute and Andenaes, n 10 above at 56.

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Similarly, in the eld of employment, while the General Framework Directive does
indeed reinforce, in some respects, the privileged status of heterosexual marriage, it
also renders unlawful the blatant forms of direct discrimination on the grounds of
sexual orientation which are rife in many member states. It seems clear that had this
directive not been adopted at the European level, and in a package of measures to
prohibit discrimination on a number of grounds, then it is unlikely that there would
be legislation prohibiting discrimination on the grounds of sexual orientation in many
member states, perhaps including the UK.The EU in this eld has led from the front
and has exerted pressure on member states to positive ends. Again, while abottom-up
strategy may indeed be preferable, it is more important to have in place such legislation, sending strong messages about appropriate forms of behaviour and treatment in
society, rather than to wait in the hope that abottom-upstrategy does develop.
In addition, there have been further developments since Stychin was writing
which may be advanced in support of an argument about the value of incremental
progress. While in Grant the Court of Justice noted that the European Court of
Human Rights had interpreted article 12 of the European Convention on
Human Rights, on the right to marry, as applying only to traditional marriage
between two persons of opposite biological sex18, since this judgment and Stychins essay was written, the Court of Human Rights has moved beyond such a
conception and in the Goodwin case extended the right to marry to transgendered
people.19 The Court of Human Rights stated that there have beenmajor changes
in the institution of marriagesince the adoption of the European Convention. In
this regard, the Court of Human Rights noted that article 9 of the EUs Charter
of Fundamental Rights departs from the wording of article 12 of the European
Convention no doubt deliberately by removing the reference to only men and
women having the right to marry.20 The implication is that the interpretation of
the right to marry may be extended to same sex partners. Thus, the EU Charter
was cited as an example of one of the changes to the institution of marriage which
may occasion further developments in the human rights case law of the European
Court of Human Rights and the Court of Justice.
Indeed, in the recent case of KB v NHS Pension Agency the Court of Justice has
acknowledged the changing concept of marriage under European Convention
case law such that laws precluding transgendered individuals from marrying in
their chosen gender are in principle in breach of article 141 of the Treaty of the
European Community which mandates equal pay between women and men.21
This is no small step, eectively recognising, at the EU level, a change in the nature and status of marriage and is a signicant move away from the statements in
Grant.22 While it has been argued that the Goodwin and I cases should properly be
18 Grant, n 2 above, para 34.
19 Goodwin v United Kingdom (No 28957/95) and I v UK (Application no 25680/94), [2002] 35 EHRR
18.
20 I v UK, ibid para 80.
21 Case C-117/01, KB v NHS Pensions Service Agency [2004] 1 CMLR 28.
22 Grant n 2 above. It also marks a departure from the Courts statement in D v Council that: It is not
in question that, according to the denition generally accepted by the Member States, the term
marriage means a union between two persons of opposite sex. Cases C-122 and 125/99 D v Council
[2003] 3 CMLR 9, para 34.

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read as homophobic,23 in view of their replication of gendered assumptions and

women and men, this was still a better judgment than one dismissing, again, the
claims of transgendered people. And it does oer some hope for more interpretative imagination in future cases.24
Expanding the concept of family

Thus, while there are compelling arguments about the matrimonial bias of EU
law and the normalising and disciplinary eects of progressive liberal law
reforms, there is also another story, that of law reforms which begin to meet the
challenge of todays diverse society, as well as recognising the changes in the concept of family. Slowly, an expanded concept of family is being developed by legislation and case law. Stychin recognises and indeed celebrates the diversity of gay
and lesbian lifestyles, and the possible enabling eects of some of the law reforms
he discusses, but remains sceptical and critical of continued use of the concept of
family. However, part of the diversity of families and of gay and lesbian ways of
living is the adoption of the language of family and marriage, thus endorsing an
approach which seeks to reform the law to take account of an expanded concept
of family. Thus, Weeks et al argue that the language chosen to express ways of
living in the lesbian and gay community is that of family meaning an anity
circle which may or may not involve children which has cultural and symbolic
meaning for the subjects that participate or feel a sense of belonging in and
through it.25 They suggest, therefore, that the debate is no longer about alternatives to the family, but alternative families or families of choice, as they describe
them.26 The call to be included within the concept of family is generally made by
reference to liberal norms of equality and non-discrimination and the language of
human rights is utilised to seek law reform. In addition to these liberal claims to
equality, some have argued that gay and lesbian relationships deserve the public
legitimation that comes from acceptance as family and/or that including gay and
lesbian relationships within the concept of family could of itself be subversive.
The argument here is that the idea of family would be radically transformed
were it to include gay and lesbian relationships.
The idea of family is so strong culturally and socially that individuals use the
term to describe themselves and their relationships. Many feminists have refused
to give up the concept of family, arguing instead for reform.27 Martha Minow has
argued, for example, that society gains through dening family membership
broadly: the values signaled by family are worthwhile yet fragile; stability,
23 R. Sandland, Crossing and not Crossing: Gender, Sexuality and Melancholy in the European
Court of Human Rights (2003) 11 Feminist Legal Studies 191^209 at 204.
24 Albeit that cases such as Frette v France (No 36515/97), [2004] 38 EHRR 21 and Karner vAustria (No
40016/98), [2004] 38 EHRR 24 suggest that the grant of family rights to lesbians and gay men may
still be a long way o.
25 J. Weeks, C. Donovan and B. Heaphy, Everyday Experiments: Narratives of Non-heterosexual
relationships in E. Silva and C. Smart (eds),The New Family? (London: Sage, 1999) at 86.
26 ibid at 83.
27 A paradigmatic example of this feminist approach is S. Moller Okin, Justice, Gender and the Family
(NewYork: Basic Books, 1989).

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nurturance and care should be promoted wherever possible, and people committed to taking on these tasks should be encouraged to do so.28 Thus, while
the family, both as an institution and in practice, may sustain gender-based
inequalities,it is often also the main source of love, identity and succour for many
women.29 This means that gender inequalities must be eliminated, but the end of
the family is not necessarily going to bring this about and may even harm many
women more than help them. More recent family theorists have also reached this
conclusion. David Morgan rightly points out that people still use the term
family.30 Families do not need to live together, as households do.Family implies
an emotional commitment that household does not. Indeed, with the deployment of the termfamilies of choice31 for gay and lesbian relationships, it is possible that the ideological power of the term is changed.32
Elizabeth Silva and Carol Smart contend that families remain a crucial relational entity playing a fundamental part in the intimate life of and connections
between individuals.33 Thus, despite the debate about the utility of the concept
of family, empirical studies conrm the growing consensus that while diverse
patterns of family life exist and are developing, people still dene particular
aspects of their lives as family life and feel committed to families.34 The major
change here, argue Silva and Smart, is that the concept of family has come to
signify the subjective meaning of intimate connections rather than formal, objective blood or marriage ties.35 And this subjective meaning remains imbued with
notions of sharing of resources, caring, responsibility and obligations, those ideals
which have always been consonant with families. While family forms may be
changing, and there are fewer normative constraints on family practices, bonds
of love, commitment and responsibility continue to bind individuals together in
their chosen families.
Furthermore, in terms of law reform, the concept of family again remains deeply embedded in our legal system, not least in the eld known as family law. In
relation to human rights norms, the protection to be oered to families and
family life is already written into international and European human rights treaties: it is already accepted as the norm and as a foundational principle.36 Arguably,
therefore, the strategy that is most likely to lead to concrete results, and real
improvements in the lives of individuals, is to argue for a broader denition of
the concept of family.While there is a legitimate concern that a focus on family
and the extension of the scope of the term may reproduce inequalities as it

28 M. Minow,All in the Family and in All Families: Membership, Loving and Owing (1992^1993) 95
WestVirginia Law Review 275 at 304.
29 G. Jagger and C.Wright,Introduction ^ Changing FamilyValues, in G. Jagger and C.Wright (eds),
Changing FamilyValues (London: Routledge, 1999) at 5.
30 D. Morgan, Family Connections (London: Polity, 1996).
31 K.Weston, Families we Choose (NewYork: Columbia University Press, 1991).
32 C. Smart and B. Neale, Family Fragments? (Cambridge: Polity Press, 1999) at 21.
33 E. Silva and C. Smart,The New Practices and Politics of Family Life, in Silva and Smart, n 25
above at 5.
34 Silva and Smart, n 25 above at 7.
35 ibid.
36 See further S. Goonesekere, Human Rights as a Foundation for Family Law Reform (2000) 8
InternationalJournal of Childrens Rights 83^99.

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privileges those not in familial relationships, this must be the focus of attention in
addition to expanding the concept of family, not at its expense.
Accordingly, while it remains true that there are pressing economic inequalities
which require immediate resolution and that there is a matrimonial bias in EU
law, and also that law reform acts in ways to discipline and govern individuals and
their relationships, the recognition of diverse relationships as equally valid should
not need to wait until the halcyon days of economic equality arrive (if they ever
will). More likely and more achievable is a broadening of the concept of family,
making it less discriminatory. It is just not plausible, in the foreseeable future, that
policy will move away from its familial bias. The dominance of the family as the
touchstone for social and legal entitlements remains strong. It is therefore important to work within such an approach to ensure the broadest and fairest denition
of family,spouse or partner.This does have a disciplinary eect, to use Stychins
terms. It does mean that those relationships which have no formal, legal standing,
will be compared to the norm of heterosexual marriage. Indeed, such an
approach brings with it not just disciplinarity, but also a lack of certainty (which
relationships will comply?) and judicial, and sometimes executive, discretion. It
may also be accompanied by greater intrusion into individuals private lives as
courts seek to understand the true nature of a relationship, rather than simply
accept a legal certicate.While this amounts to assessing the similarity of the relationship to traditional marriage, for so long as rights and entitlements are
extended to couples, this seems necessary. As Kenneth Norrie argues, if the end
result is justice and equality for gay men and lesbians, as well as a more equitable
approach to all family disputes, then this is a price worth paying.37
Liberalism and the role of the European Union

Moving on from the concept of family, to liberal law reform more generally, in
the context of Romania, and other accession states, Stychin asks: is the discourse
of human rights cynically deployed by EU actors so as to mask an underlying
neoliberal agenda imposed unquestioningly on the accession countries? (p 137)
Clearly, the human rights agenda of the EU is not ideal. The criticisms of the
Court of Justice and of the institutions of the EU over their privileging of market
rights over human rights, of their downplaying of human rights in the face of
liberal economic pressures are all correct. However, this does not detract from
the fact that there is, at least, some form of human rights agenda which does have
real benets for many individuals. In terms of the new members of the EU, it has
meant that reforms have been enacted and some social policy measures adopted
which conform to these European values, as in Stychins case study of Romania.
While such changes may indeed be top-down and while in an ideal world they
would be bottom-up, there was no sign of change at the bottom. There is a risk,
to which Stychin alludes, that the imposition of changes may indeed backre and,
for example, mean a refusal of oers of accession and/or further co-operation with
the EU. But this is where the economic tie-in takes eect.While the Council of
37 K. Norrie,Sexual Orientation and Family Law in J. Scoular (ed), Family Dynamics ^ Contemporary
Issues in Family Law (London: Butterworths, 2001) at 174.

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Europe has been a successful promoter of human rights throughout Europe, it has
not had the economic pull or call it coercion of the EU. It is the temptation
of greater economic stability and success that is encouraging the changes in terms
of human rights. And, while the economic agenda may in many respects be distasteful and open to challenge, it remains the only game in town.We should seek
to improve the nature of the economic demands, but not at the expense of delaying implementation of human rights norms that can be bargained for at the same
time.
This is exactly the value of the EU. It is relatively easy to criticise the EU: to
nd examples of mindless bureaucracy, petty politicking, over-zealous law
reform and the rest. At root, however, it is an association of states which promotes
values which challenge the even more neoliberal economics of the US and which
helps to foster human rights values in countries across Europe by oering membership.We can see this at play in relation to the possible accession of Turkey.This
might be criticised as the imposition of Western liberal values, a colonisation for
the twenty-rst century. However, when the values and practices being challenged include the criminalisation of homosexual sexual relations, as in Romania,
or the endemic nature of discrimination against women, demonstrated by high
levels of illiteracy or the prevalence of honour killings, as in Turkey, then for me
this imposition of values is a force for good. Of course it is better for changes to
take place bottom-up and the best approach is to work with individuals and
organisations within the countries, but the help and indeed the pressure of organisations such as the EU is necessary.

CONCLUSIONS

Stychins book marks the completion of the third of his trilogy of works on the
themes of same sex sexualities and law reform.38 His contribution to these debates
has been signicant. Indeed, he helped create and then shape these debates. His
reach, in terms of substantive law has been wide and has, fortunately, included
EU law. Governing Sexuality is a densely theoretical study, which is unusual in the
eld of EU scholarship; Stychins insights add a new dimension to our understanding of EU law, particularly in the arena of same sex sexualities. At one stage,
when discussing PACS, Stychin suggests that his critics may say that he has overtheorised this legal reform (p 74). Some critics may indeed make such claims in
relation to the analysis oered in much of the book. But this would be to miss the
point of what is novel and innovative in this study, especially in relation to the
EU. Books and journals on EU law are full to overowing with detailed doctrinal analysis of recent legal developments. But it is work such as Stychins which
makes us examine developments from a fresh, theoretical perspective. It has been
long argued, often on the pages of this Review, that there is a dearth of theoretical
analyses of the phenomenon of European legal integration and the development
38 Laws Desire: Sexuality and the Limits ofJustice (London: Routledge, 1995); A Nation by Rights: National
Cultures, Sexual Identity Politics and the Discourse of Rights (Philadelphia: Temple University Press,
1998).

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of EU law. Such criticism rightly extends even to areas such as discrimination law,
immigration and asylum law and the emerging family law.While EU law is not
the sole focus of Stychins book, it nonetheless oers many theoretical insights and
legal analyses which should be more widely recognised and deployed within the
eld of EU legal studies.
Finally, this books oers a challenge to assumptions about the good of liberal
law reform in this area. Stychin asks us to look beyond the adoption of laws eliminating discrimination on grounds of sexual orientation or of granting partnership rights to same sex couples. He asks us to see the potential dangers in these law
reforms in terms of their disciplinary functions and privatisation of responsibility.
Stychin says that he does not think he has written a pessimistic book (p 140). I
think, however, that he has. But this is not necessarily negative. It is in fact a perhaps necessary challenge to my more positive belief in liberal legal progress,
which he contests. It means that even when celebrating the adoption of new laws,
I have to remember the possible downsides and adverse eects and weigh them in
the balance. I must remain sceptical about some of the law reforms being adopted.
But I also think the book is evidence of the shifts that have taken place in recent
years in relation to same sex sexualities and the extent to which liberal legal progress has indeed changed the nature of the debate.We are now debating the eects
of law reform, the exact nature of partnership rights, the possible consequences in
accession countries of human rights norms. The nature of the debate has changed
dramatically. Years ago we would have been working from a completely dierent
baseline in which the laws now being discussed and critiqued were only a dream.

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