Comparative Sexual Orientation Law

Course description Comparative Sexual Orientation Law
Year: 2017-2018
Catalog number: 22989241
Teacher(s):
  • prof. Kees Waaldijk
Language: English
Blackboard: Yes
EC: 5
Level: 300
Period: Semester 2, Block III
  • Yes Elective choice
  • Yes Contractonderwijs
  • Yes Exchange
  • Yes Study Abroad
  • Yes Evening course
  • No A la Carte
  • No Honours Class

Admission requirements

Successful completion of at least one year of university education (including ideally some course(s) in law, human rights or LGBT studies). Good writing skills in English and some experience in writing research papers.
The course is primarily aimed at third year law students of many different national backgrounds and of many different universities, but students from other disciplines or years are equally welcome. The maximum number of students is 18.

Description

This course takes a close look at legal developments concerning sexual orientation. Around the world, various rules of national law deal with homosexual orientation, either to suppress or marginalize it (for example through criminalisation), or to recognize or protect it (for example in family law or in anti-discrimination law). In many countries, and also in many international organisations, the law with respect to sexual orientation has been changing recently, and more changes can be expected. To grasp the many advances and setbacks in this field, this course takes a comparative approach, comparing laws of different countries and comparing minimum standards set by different international institutions.

Since the 1790s a growing number of countries has decriminalised sex between people of the same-sex, a trend that helped international human rights bodies to set strong and clear precedents condemning such criminalisation (still existing in some 80 countries) as a violation of human rights. Since the 1970s a growing number of countries has started to take legal measures against sexual orientation discrimination; in the field of employment the European Union since 2003 requires member states to explicitly and effectively prohibit such discrimination. Simultaneously a growing number of countries has started to legally recognise same-sex couples and sometimes also their children; slowly such a recognition is now also finding its way into international human rights case law.

Students will be working with original materials, including national and international case law, and with the results of multi-country comparative legal research. They will do their own comparative legal research, and will write papers on different aspects of sexual orientation law.

Course objectives

Objectives of the course
Introduce students to the main legal issues concerning homosexual orientation (criminalisation, anti-discrimination, partnership, parenting) in the law of different countries in the world and in the minimum standards of different international organisations.

Achievement levels
The following achievement levels apply with regard to the course:

  • Students will understand how different aspects of sexual orientation (behaviour, preference, relationships, etc.) are being ignored and/or recognized in national and international law, and how national law is both influencing and following international law (including European Union law).
  • Students will be familiar with the most important case law in the field, especially from the European Court of Human Rights and the UN Human Rights Committee.
  • Students will have gained some skills in finding materials on foreign law and in doing basic comparative research.
  • Students will be able to think and argue in an informed and relevant manner about issues of sexual orientation law.

Timetable

From February to April 2018 the course will be taught in ten sessions (late afternoon/early evening, on Thursdays and some Mondays). Most sessions will be at Leiden University’s Campus in The Hague (Wijnhaven building, Turfmarkt 99, 5 minutes walk from The Hague Central Station). The final paper for the course will be due late in April. The exact timetable of this course will be announced on Blackboard.

Mode of instruction

Seminars

  • Number of (2 hour) seminars: 10
  • Names of instructors: Kees Waaldijk and guest lecturers
  • Required preparation by students: reading the set materials, submitting a question about these materials, and submitting an answer to a set question about these materials (before each session)
  • Each session will be followed or preceded with an extra half-hour to discuss relevant developments in the news, or to discuss papers before and after they are written, or to meet researchers and activists from the field of sexual orientation law.

Assessment method

Examination form(s)
• Active participation in class (including a short individual presentation, and for each session: submitting a question about the reading materials and submitting an answer to a set question about these materials) (25%)
• First research paper of up to 1100 words including sentences in footnotes (25%)
• Second research paper of up to 2200 words including sentences in footnotes (50%)
The percentages indicate how the three grades will lead to the overall grade for the course.
Being absent more than once, or failing more than once to read the set materials or to hand in the required question and answer on time, will lead to a lower grade for participation in class. Handing in a paper after a deadline will lead to a lower grade for that paper.

Not having been absent more than twice is a condition for submission of the first research paper. Having submitted the first paper on time, and not having been absent more than twice, are conditions for submission of the second paper.
Each paper needs to reflect a good knowledge of the required reading materials set for the sessions of the course up to the day of submission. And each paper must show that relevant additional legal, academic and other materials were found and used. All sources must be referenced in footnotes, and in a bibliography. The bibliography and any charts, graphs or tables are excluded from the word count.

The second research paper counts as the “final exam” (“eindtoets”) for this course. The first paper and the active participation in class count as “part-exam” (“deeltoets”, in the sense of art. 4.1.3 of the Onderwijs- en examenregeling). There will only be the possibility of a “resit” (“herkansing”) for the second research paper, because this counts as the “final exam”. This resit will take the form of another research paper of up to 2200 words (or a rewriting of the submitted paper if it was almost of sufficient quality) plus an oral exam about the paper and about the reading materials of the course.

Submission procedures
Via the Safe Assign function in Blackboard.

Areas to be tested within the exam
The examination syllabus consists of the required reading for the course, and the subjects taught in the seminars and all other instructions which are part of the course.

Blackboard

More information on this course will be offered in Blackboard.

Reading list

Obligatory course materials (subject to change)

Literature:
• UN High Commissioner for Human Rights, Discrimination and violence against individuals based on their sexual orientation and gender identity (report of 4 May 2015) A/HRC/29/23, online here
• Alli Jernow, Sexual Orientation, Gender Identity and Justice: A Comparative Law Casebook, Geneva: International Commission of Jurists 2011 (online here buying this book is recommended, although only parts of it are required reading).
• Kees Waaldijk, ‘The Right to Relate – A Lecture on the Importance of “Orientation” in Comparative Sexual Orientation Law’, 24 Duke Journal of Comparative & International Law (2013) p. 161-199, online here)
• Esin Örücü, ‘Methodological Aspects of Comparative Law’, 8 European Journal of Law Reform (2006) p. 29-42 (online here)
• Edwin Cameron, ‘Constitutional Protection of Sexual Orientation and African Conceptions of Humanity’, 118 South African Law Journal (2001) p. 642-650 (online here)
• Nancy D Polikoff, ‘Recognizing Partners but not Parents / Recognizing Parents but not Partners: Gay and Lesbian Family Law in Europe and the United States’, 17 New York Law School Journal of Human Rights (2000) p. 711-750 (online here)
• Christa Tobler & Kees Waaldijk, ‘Case Note’, Court of Justice of the European Community, 1 April 2008, Case C-267/06 (Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen), in 46 Common Market Law Review (2009) 723-746, (online here )
• Kees Waaldijk, ‘Same-Sex Partnership, International Protection’, in: R Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford: Oxford University Press 2012 (updated 2013 version is online here)
• Douglas Sanders, ‘Same-Sex Marriage: An Old and New Issue in Asia’, in: H Petersen et al. (eds.), Comtemporary Gender Relations and Changes in Legal Cultures, p. 211-233, Copenhagen: DJØF Publishing 2013).
• Kees Waaldijk (ed.), More and more together: Legal family formats for same-sex and different-sex couples in European countries – Comparative analysis of data in the LawsAndFamilies Database (FamiliesAndSocieties Working Paper 75(2017)), Stockholm: University of Stockholm 2017, www.familiesandsocieties.eu.
• Kees Waaldijk & Matteo Bonini-Baraldi, Sexual Orientation Discrimination in the European Union: National Law and the Employment Equality Directive, The Hague: Asser Press 2006, p. 1-4 and 189-231 (online here)
• Kees Waaldijk, ‘Great diversity and some equality: non-marital legal family formats for same-sex couples in Europe’ in: 1 GenIUS – Rivista di studi giuridici sull’orientamento sessuale e l’identità di genere 2014/2, p. 42-56, www.articolo29.it).

Cases:

UN Human Rights Committee
• 2 April 1982, Hertzberg v. Finland, Comm. 61/1979,
http://www1.umn.edu/humanrts/undocs/newscans/61-1979.html.
• 31 October 2012, Irina Fedotova v. Russian Federation, Comm. 1932/2010,
http://www2.ohchr.org/english/bodies/hrc/docs/CaseLaw/CCPR-C-106-D-1932-2010.doc
• 31 March 1994, Toonen v. Australia, Comm. 488/1992,
http://www1.umn.edu/humanrts/undocs/html/vws488.htm
• 30 March 2007, X v. Colombia, Comm. 1361/2005,
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f89%2fD%2f1361%2f2005&Lang=en
• 17 July 2002, Joslin et al. v. New Zealand, Comm. 902/1999, http://www1.umn.edu/humanrts/undocs/902-1999.html.

Court of Justice of the EU
• 7 November 2013, X and others (C-199/12 to C-201/12), ECLI:EU:C:2013:720,
http://curia.europa.eu/juris/liste.jsf?language=en&num=C-199/12
• 25 April 2013, Asociaţia Accept (C-81/12), ECLI:EU:C:2013:275,
http://curia.europa.eu/juris/liste.jsf?language=en&num=C-81/12.
• 12 December 2013, Hay (C-267/12), ECLI:EU:C:2013:823,
http://curia.europa.eu/juris/liste.jsf?language=en&num=C-267/12

European Court of Human Rights
• 22 October 1981, Dudgeon v. UK, appl. 7525/76, “http://hudoc.echr.coe.int/eng?i=001-57473
• 21 December 1999, Mouta v Portugal, 33290/96,
http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=001-58404
• 24 July 2003, Karner v. Austria, Appl. 40016/98,
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-61263.
• 24 June 2010, Schalk & Kopf v. Austria, Appl. 30141/04,
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-99605
• 19 February 2013, X and Others v. Austria, Appl. 19010/07,
http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=001-116735

Inter-American Court of Human Rights
• 24 February 2012, Atala and daughters v Chile, Series C No. 239, www.corteidh.or.cr/docs/casos/articulos/seriec_239_ing.pdf (parts only).

Course information guide
• Will be put on Blackboard.
• Some materials that are not available online, will be handed out in class.

Recommended course materials

Registration

Students can register for this course through uSis. Students enrolled at another Dutch university than Leiden can obtain access to uSis, by first submitting the form Inschrijven als gaststudent or Request for registration as a guest student
Registration is free for students enrolled at any Dutch university (including exchange students). Others will be charged a fee, and should apply well in advance. This is so for those doing the course as a Study Abroad Student and for those doing it as Contractonderwijs

Exchange students have priority and will be registered for the course first. A number of additional places will be available for students from Leiden University and from other universities.

Contact information

Institution/division

  • Institute: Public Law
  • Department: Public International Law
  • Room number secretary: B1.21, Kamerlingh Onnes building in Leiden
  • Opening hours: 9:00 – 17:00
  • Telephone number secretary: 071 527 7578
  • Email: volkenrecht@law.leidenuniv.nl

Languages