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Ruler of law
How to measure quality of legislation
By Søren Laursen, LGBT Denmark, email@example.com
Every year ILGA-Europe issues a new version of Rainbow Europe, the result of a beauty contest for LGBTI-related legislation in Europe. But how do you measure the quality of law and express that in a single figure? It is a formidable task and calls for careful consideration on aims and tools.
Purpose of Rainbow Europe
Why do we need a beauty contest for legislation? Well, for several reason. For one it is a teaser for politicians – i.e. lawmakers – to strive for higher position. That is if they are competitive in this area. For others it may at least talk to the conscience to see the national jurisdiction way down the list. In the press arena maps and ordered lists are all time favourites and in this sense Rainbow Europe has an important role for communication on differences in national legislations across Europe – usually not exactly a piece of popular culture.
Among us, the lobbyists, another purpose may be more eminent, the role of a cheat sheet. Do we have this? Check. And that? Check. And what about this? Nope – gonna get that. We don’t use the geographical map, but navigate the landscape of the legislational theme park. To be a good map it must ensure completeness, i.e. no uncharted areas, and precision, i.e. travellers should end up at the same destinations following the map. Or in other words it should constitute a catalogue of the necessary and sufficient legislation. The ideal foundation for our quest for the perfect body of laws.
However, what does that really mean? If you think this is a well-posed problem – define the perfect legislation – think again. Let’s delve into the substance.
The legal canvas
Today we have legislation at many levels. We have the European Human Rights Convention of the Council of Europe. We have the EU laws in form of directives, even though there are opt-outs, e.g. by Denmark, which is not bound by all directives, though we usually align with them. Then there are the national legislations, and often there are subnational jurisdictions also, e.g. in federated states for instance the German Länder or individualised regions such as the autonomous communities of Spain, or constituent countries such as the four countries of the UK or parts of Dutch Caribbean or Greenland and Faroe Islands in the Kingdom of Denmark. So – you are an LGBTI-person somewhere in Europe and are subject to several jurisdictions on different levels.
Moreover the whole build of legislation differs hugely throughout Europe. The role of the legislature and the judiciary differs from one place to the other. The two major classes of legal systems, i.e. Common Law and Civil Law, constitute a divide of Europe with the UK and Ireland on one side and continental and Northern Atlantic Europe on the other side. Some scholars consider Scandinavian Law as a Legal system in itself. The differences among these systems are profound.
Common law is generally uncodified i.e. there is no comprehensive body of statutes. Rather it is based on precedence, and if a case is not covered by the scattered statutes or earlier decisions, the judge will by the decision set precedence for future similar cases. Civil law, on the other hand, is codified. Here the judge applies the provisions in the codification. Scandinavian law is one kind of civil law but differs from continental civil law in the sense it is not as codified. To some extent a judge may by principles of analogy make decisions in areas not specifically codified. A special trait of Scandinavian law is the use of preparatory legislative material (traveaux préparatoires) e.g. references to discussions in the parliament in the reading of the bill which indicate the intentions of the legislature.
This should all indicate the complexity of the playground.
Recognition of group
The first question could be: Are the LGBTI groups recognized or not? When discussing positive measures we want to be recognized: for instance, we want discrimination on the ground of gender identity to be outlawed. Protection laws exist recognizing different groups of people. Here we want to be recognized. When discussing negative measures, however, we don’t want to be recognized. We do not want a restriction on definition of marriage stating that same-sex couples cannot be granted this civil status.
This is legislation based on what we could call group eligibility. There are more of these: Is this group eligible for asylum? Is this group eligible for protection against discrimination? Is this group eligible to measures regarding hate crime? In cases of group eligibility or potential group eligibility an analysis should be made to test, how the rights in question are administered compared to other groups, e.g. based on ethnicity or religion. Is sexual orientation, non-binary gender, gender identity and gender expression addressed on par with other groups?
Codification or not
Let’s go further down this road. An example: in some countries the asylum law specifically mentions LGBTI-persons among the protected groups. Also, the EU asylum directive refers to sexual orientation and gender identity. Because Denmark has a number of opt-outs from the European union, including police and justice, it is not bound by this directive. The Danish asylum law which constitutes a few paragraphs in the Foreigners Act is very simple. In few words: you can be recognized as a refugee either according to the UN Refugee Convention (convention status) or according to similar grounds (protection status). Neither the convention nor the Danish law mentions sexual orientation, gender identity or gender expression. The convention refers to “membership of a particular social group” and over the years LGBTI persons have become included in this term. Are LGBT persons protected then? Yes: the Refugee Appeals Board, which is the court-like institution deciding in asylum cases, has granted asylum to LGBT refugees since the 90’ies, and more recently it has specifically stated that LGBT persons fall under the notion of a particular social group in the sense of the convention.
Thus, the Danish asylum law does not mention sexual orientation, gender identity or gender expression, but it doesn’t mention any other traits either, e.g. ethnicity or religion. Hence, even though sexual orientation, gender identity and gender expression are not mentioned; they are still handled on par with e.g. ethnicity and religion.
In the current Rainbow map Denmark gets only half of the points in this section because sexual orientation and gender identity is not mentioned in the law. I will argue, that this is not a proper evaluation, as in a Danish context the groups are properly protected on par with other groups. In the beauty contest one must take care not to evaluate the legal system itself but rather the handling of the problem by the legal system.
Sometimes the legislature introduces restrictions concerning specific groups. For instance in Denmark, from 1997 to 2006 medically-assisted reproduction (MAR) could only be provided to opposite-sex couples. Thus same-sex couples and singles were effectively banned from treatment. Such a situation must be taken into account when handing out points in the evaluation: a restriction is an active decision, and it is even worse than if the topic was not addressed at all.
Other examples of restrictions made by laws would be the definition of a marriage as a union of an opposite-sex couple or limitation of freedom of expression or of freedom of association.
Behold new ground
Over the years we develop the legislation to be ever more inclusive. This means crossing borders developing new ground. Denmark has done this on more occasions e.g. with registered partnership in 1989 and same-sex legal parents (second-parent adoption) in 1999. These two examples are easy to understand, whereas other cases are more complex.
Dealing with rainbow families with more than two adults involved is difficult and different approaches develop. In Denmark we created a great solution (2013), where the intention at the time of conceiving is protected, whereas other approaches prescribe rules how to fight over the child once it is born. In the Danish model a man, a woman and her female partner can agree in writing whether he or the female partner of the woman shall be the second legal parent of a child to be conceived by the man and the woman. The model works whether or not the women are married.
Evidently this law is somewhat complex – I have to use many words simply defining what it is all about. Yet it is of huge practical importance for the families being founded providing a solid basis for the new beginning. Also, it ought to be considered by other countries in their development of their legislation. It is also worth noting that in Denmark this solution is available to rainbow families only. For opposite-sex couples the paternity assumption still holds, and such couples cannot agree that the sperm donor rather than the male partner should be the father. But whereas this scenario is common among rainbow families it will hardly ever be the case in other families.
Thus, here the law provides a solution tailored specifically to rainbow families. It is not a question of having the same as other families, but having something, which matches needs of rainbow families.
Actually when this revision of the Children’s Act was made, another important possible outcome was at play: a counterproductive solution. The case was, that a solution was proposed based on a generalised paternity assumption, i.e. the female spouse of the birth mother would automatically become the second legal parent. This of course, is a totally unacceptable solution as it effectively deprives the man – in our case often a gay man – his right to parenthood. Fortunately that solution was discouraged.
When opting for pragmatic solutions we should never loose sight of the proper solution. As mentioned Denmark introduced second-parent adoption in 1999. This was a way to ensure legal parenthood for same-sex couples. This, however, is a stepping stone only, as it is not satisfactory. Other children get legal parents by other means, in Denmark by means of the Children’s Act. But rainbow children got same-sex legal parents under the adoption regime. This had many undesirable consequences. For instance, adoption could take place only three months after the birth meaning that the co-mother could not get parental leave at birth the same way as a father can. Of course rainbow children should be under the same legislation as other children, and that was what happened in Denmark in 2013. Thus, second-parent adoption is an undesirable second-rate solution to become same-sex legal parents. Yet it is still listed in the Rainbow Map as a prize to win.
Art of categorisation
In the current Rainbow Map a number of subject areas are defined: 1) Equality and non-discrimination, 2) Family, 3) Hate crime and hate-speech, 4) Legal gender recognition and bodily integrity, 5) Freedom of assembly, association and expression, and 6) Asylum. Though this certainly covers the important areas, one might want to flesh out other topics. For instance access to health services would be a candidate, as there are so many aspects including medically assisted reproduction, cells and tissues donation, hormone treatment, gender affirming surgeries and HIV. Much – but not all – within this area would be administrative practices rather than law bound regulation. However, already today the Rainbow Map contains policy entries.
Ruler of law
One thing is to decide, which topics to include in the analysis. Another thing is to settle how to measure the quality or value of the law. One way is to see, if a specific law exists or not. Considering the differences in legal systems across Europe this is hardly a meaningful approach. It would make more sense to list all possible problems you may encounter as an LGBTI person and test, if the problem is properly addressed. This leads to the question: what is properly addressed?
Based on the above discussion one could consider the following when discussing a specific problem:
1) Does the legislation cater for a solution which solves the problem?
2) If an LGBTI person and another person face the same problem, does the law provide a solution to the problem which is equally satisfactory for both groups?
3) In case of group eligibility does the law provide solutions for LGBTI persons on par with solutions for other protected groups.
It would be possible to order the possible solutions to a given problem:
1) There is a restriction.
2) Other groups are eligible but not LGBTI persons.
3) There is a negligence.
4) There is a solution for LGBTI persons but it is counterproductive.
5) There is a solution for LGBTI persons but it is subpar compared to solutions for other eligible groups.
6) There is a solution for LGBTI persons on par with solutions for other eligible groups, but the solution is subpar compared to the solution for the majority population.
7) There is a solution for LGBTI persons on par with solutions for other persons.
Because it is an ordered list it might be possible to apply some measure according to the order. But one thing is to order solutions to a single problem. If we are to make a one-figure assessment of a jurisdiction we need to aggregate these measures. This is not trivial, for how should one area be weighted against another. What is most important or valuable: an antidiscrimination law which is rarely used or some small piece of family law providing day-to-day comfort for hundreds of rainbow families? Basically it is not possible to say, so a pragmatic solution must be chosen.
This leads us back to the purposes of the Rainbow Map. For the lobbyist and the politician it could be highly valuable to consider each category by itself. This makes comparison of solutions to problems more transparent: these are the problems and these are the current solutions. This is not an exercise in comparative law but a practical tool to understand problems and to develop solutions.
For the sake of popularisation one could still decide to do some kind of aggregation to a single figure to be able to rank the countries. But care must be taken to take as much as possible into account and not just point out a limited set of legislative and administrative focus points, the assessment of which depends on the legal system and traditions of legislature of the individual states.
Søren Laursen is a long-time activist and lobbyist of LGBT Denmark, chair 1994-98 and again since 2013. He is engineer and PhD (physical chemistry). For many years a senior consultant on datawarehousing, Business Intelligence and analytics with an international consultancy company.