The European Union’s International Promotion of LGBTI Rights: Promises and Pitfalls [1 ed.] 0367514397, 9780367514396

Table of contents :
Cover
Half Title
Series Page
Title Page
Copyright Page
Dedication
Table of Contents
List of figures
Preface
List of abbreviations
1 Introduction: an artificial ‘clash of civilizations’?
2 From norm diffusion to norm contestation: Europe as a normative actor
3 LGBTI rights promotion within the EU: crafting consensual norms where few exist?
4 Homophobia and EUrophobia in accession and neighborhood countries
5 Development policy and foreign aid: conditionality and its discontents
6 Global and diffuse? The EU’s multilateral promotion of LGBTI rights
7 Conclusion: rethinking and reimagining international LGBTI rights promotion
Index

Citation preview

“For more than a decade, an increasingly sophisticated literature has charted the effect that the EU has on LGBTI rights in its own member and accession states. This book is the biggest step yet toward a new frontier, one that looks at the EU’s impact on such rights far beyond its borders. Written by an expert on the inner and outer workings for the EU, and the varied positions of the member states, Thiel makes sense of the Janus-faced nature of EU foreign policy on LGBTI rights. He looks critically at the normative implications of such norm promotion, while not throwing out the simultaneous importance of an LGBTI foreign policy that activists could have only imagined some decades ago. Taking seriously the empirics and the process, this critical reading shines a light on the potential of softer social mechanisms of change—as opposed to hard conditionality—that should guide IOs in refining the ways they seek to make a positive impact in the world, as well as identifying their limits in doing so.” — Phillip M. Ayoub, Associate Professor at Occidental College, USA, and author of When States Come Out “This book is a significant addition to the literature on the EU’s human rights policy. Thiel critically analyses the EU’s attempts to diffuse norms of LGBTI rights, in Europe and beyond, and exposes the weaknesses in both internal and external LGBTI rights promotion. Importantly, he demonstrates that the EU’s policies can backfire, and generate contestation by external actors, which in turn can damage the rights of LGBTI people on the ground. He calls for a more reflective and intersectional EU practice, within a broader foreign policy prioritising support for democracy.” — Karen E. Smith, Professor and Head of the Department of International Relations at LSE, UK

The European Union’s International Promotion of LGBTI Rights

This book critically analyzes the European Union’s promotion of LGBTI rights in the international arena. Lesbian, Gay, Bisexual, Transgender, and Intersex rights are heavily contested across the globe, with over 70 countries criminalizing same-sex relations and at least 10 imposing the death penalty. The book details how the EU, based on different member state positions, attempts to jointly formulate and implement guidelines for the external promotion of LGBTI rights. It also problematizes the various normative and policy-based Eurocentric prescriptions to further these rights. Drawing on an international political sociology framework infused with queer theoretical thought, the author investigates the apparent normative tensions emerging from Europe’s promotion of LGBTI rights as liberal human rights and the ensuing pushback by culturally and politically conservative states. He examines the compatibility of EU institutional and member states’ conceptions of LGBTI rights and the more general question of the EU’s normative agenda-setting power on the world stage. He then explores the external policy areas in which LGBTI rights promotion is formulated and diffused – namely in development and foreign aid, in enlargement and neighbourhood policies, and in other international organizations. In conclusion, the author suggests viewing the contention surrounding LGBTI rights within broader governance contexts, and thus reimagining rights promotion in a more holistic manner. This book will be of great interest to students and scholars of LGBTI and Human Rights, European Politics, and International Relations. Markus Thiel is Associate Professor in the Department of Politics and International Relations at the Green School of International and Public Affairs at Florida International University, Miami. He also directs FIU’s EU-Jean Monnet Center of Excellence. His research interests are the political sociology of the EU and European Politics more generally, Identity Politics and LGBTI Politics.

Routledge Studies in Gender and Global Politics Series Editor: Laura J. Shepherd, University of Sydney, Australia

This series aims to publish books that work with, and through, feminist insights on global politics, and illuminate the ways in which gender functions not just as a marker of identity but also as a constitutive logic in global political practices. The series welcomes scholarship on any aspect of global political practices, broadly conceived, that pays attention to the ways in which gender is central to, (re)produced in, and is productive of, such practices. There is growing recognition both within the academy and in global political institutions that gender matters in and to the practices of global politics. From the governance of peace and security, to the provision of funds for development initiatives, via transnational advocacy networks linked through strategic engagement with new forms of media, these processes have a gendered dimension that is made visible through empirically grounded and theoretically sophisticated feminist work. International Women’s Rights Law and Gender Equality Making the Law Work for Women Edited by Ramona Vijeyarasa Gender and Political Apology When the Patriarchal State Says “Sorry” Emma Dolan The European Union’s International Promotion of LGBTI Rights Promises and Pitfalls Markus Thiel

For more information about this series, please visit: https://www.routledge. com/Routledge-Studies-in-Gender-and-Global-Politics/book-series/GGP

The European Union’s International Promotion of LGBTI Rights Promises and Pitfalls Markus Thiel

First published 2022 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2022 Markus Thiel The right of Markus Thiel to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Thiel, Markus, 1973– author. Title: The European Union's international promotion of LGBTI rights : promises and pitfalls / Markus Thiel. Description: Abingdon, Oxon ; New York, NY : Routledge, 2022. | Series: Routledge studies in gender and global politics | Includes bibliographical references and index. Identifiers: LCCN 2021010134 (print) | LCCN 2021010135 (ebook) | ISBN 9780367514396 (hardback) | ISBN 9780367516185 (paperback) | ISBN 9781003054627 (ebook) Subjects: LCSH: Gay rights—European Union countries. | Gay rights—International cooperation. | Sexual minorities—Civil rights—European Union countries. | Sexual minorities—Civil rights—International cooperation. | European Union. Classification: LCC HQ76.8.E85 T45 2022 (print) | LCC HQ76.8.E85 (ebook) | DDC 323.3/264094—dc23 LC record available at https://lccn.loc.gov/2021010134 LC ebook record available at https://lccn.loc.gov/2021010135 ISBN: 978-0-367-51439-6 (hbk) ISBN: 978-0-367-51618-5 (pbk) ISBN: 978-1-003-05462-7 (ebk) DOI: 10.4324/9781003054627 Typeset in Times New Roman by codeMantra

To my beloved late husband Peter J. Garcia

Contents

List of figures Preface List of abbreviations

xi xiii xv

1

Introduction: an artificial ‘clash of civilizations’?

2

From norm diffusion to norm contestation: Europe as a normative actor

20

LGBTI rights promotion within the EU: crafting consensual norms where few exist?

44

Homophobia and EUrophobia in accession and neighborhood countries

68

Development policy and foreign aid: conditionality and its discontents

93

3 4 5 6 7

1

Global and diffuse? The EU’s multilateral promotion of LGBTI rights

117

Conclusion: rethinking and reimagining international LGBTI rights promotion

138

Index

161

Figures

3.1 3.2 4.1 4.2 4.3 4.4

Rainbow Europe Map, ILGA Europe, 2013 Rainbow Europe Map, ILGA Europe, 2020 European Accession and Neighborhood States Quality of Democracy Index, 2014–2020, Bertelsmann Foundation Decline of European Populations According to Sub-region, Pew Research Muslim Populations in EU States and Projected Growth Scenarios, Pew Research

52 52 71 75 79 80

Preface

As a ‘critical friend’ of Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) politics, rather than an outright queer theorist, which also becomes evident in my penchant for qualitative empirical research and policyrelevant critique, I hope that this book serves to raise awareness of the unintended consequences of an important international policy issue. Similarly, ‘feminist critical friends’ (Chapell and Mackay 2020) are generally supportive but also use their expertise and distance from politics to be both engaged and critical analysts of progressive policies. Dedicated to bridging LGBTI politics and queer theory, this book aims to link the support for human rights for LGBTI individuals worldwide with a recognition of the manifold challenges, contingencies, and opportunities that come out of a criticalreflective position on and analysis of the matter, and use my privilege as a tenured Caucasian gay academic to advocate for a reimagining of existing rights policies. This extends to EU politics and policies, which, while often created with good intentions, may produce ambiguous outcomes, as my previous critical-constructivist analyses of EU policies highlight. Scholars in European (Union) Studies have more recently rediscovered and advanced ‘critical studies’ as an essential, corrective focus; however, instead of concentrating on mainstream issues such as democracy or capitalism, newer post-materialist issues such as civil society or sexuality and gender issues are now analyzed in this groundbreaking manner. There are many friends and colleagues that helped me along the way with their insightful comments on this project, and their encouragement through difficult times. I want to express my heartfelt thanks to David Paternotte and Phil Ayoub for their unwavering support, Susanne Zwingel for being a critical friend herself, Johanne Saltnes for the great collaboration on other outputs, Manuela Picq for her sisterhood and intellect, as well as Elisabeth Pruegl, Koen Slootmaeckers, Momin Rahman, Mike Bosia, Emek Ucarer, Sandy Mc Evoy, Katie Laatikainen, Michael J. Williams, Romain Pasquier, Anthony Langlois, Yovita Ivanova, Amy Lind, David Rayside, Sabine Lang, Roberta Guerrina, Hannah Muehlenhoff, Karen Smith, Matthew Waites, and many others for making International Relations a more humane discipline. A special thanks go to Eloisa Vladescu and Ernesto

xiv Preface Fiocchetto, as well as my Routledge editors, for their detail-oriented help in making this manuscript better. And to Laura Shepherd and the anonymous reviewers for embracing this project for Routledge’s ‘Gender in Global Politics’ series. Finally, I would like to thank Florida International University’s Department of Politics and International Relations, where I found an intellectual and warm home in one of the few remaining free-standing IR departments in the U.S. I would also like to acknowledge with gratitude the support of Ben Tonra, in collaboration with Arena’s GLOBUS Global Justice Project, the German Development Institute and there especially Christine Hackenesch for the inclusion in their project on the politicization of EU development aid, the International Studies Association for awarding Momin Rahman and me the workshop grant on the politicization of international LGBTI politics, as well as Christine Caly-Sanchez and our Miami-Florida Jean Monnet Center of Excellence, supported by the European Commission. May this book contribute to an already engaging fruitful dialog in the academic field of sexuality and gender politics and to more inclusive institution- and policy-building.

Abbreviations

ACP ASEAN AU CARICOM CEE CSO CJEU DG EEAS EP EU GDP HRC ILGA ILO IMF LGBTI NATO NGO NIEO NHRI NPE ODA OECD SDG SOGI TFEU TRANS* UN UNUDHR UNDP WB WTO

Africa, Caribbean and Pacific Association of Southeast Asian Nations African Union Caribbean Community Central and Eastern Europe Civil society organizations Court of Justice of the EU Directorate-General (of the EU administration) European External Action Service European Parliament European Union Gross domestic product Human Rights Council International Lesbian, Gay, Bisexual, Trans and Intersex Association International Labor Organization International Monetary Fund Lesbian, Gay, Bisexual, Transgender, Intersex North Atlantic Treaty Organization Non-governmental organization New International Economic Order National Human Rights Institution Normative power Europe Official Development Assistance Organization for Economic Cooperation and Development Sustainable Development Goals Sexual Orientation and Gender Identity Treaty on the Functioning of the European Union A variety of transgender expressions United Nations UN Universal Declaration of Human Rights UN Development Program World Bank World Trade Organization

1

Introduction An artificial ‘clash of civilizations’?

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. Article 2 of the Treaty on European Union (TEU)

Despite the successes of global Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) rights promotion over the past few decades, over 65 countries criminalize homosexuality, 11 countries still have the death penalty on the books, over 3,000 trans* or gender-diverse people have been killed in the past decade, and there seems to be a general rights recession occurring in Europe and beyond (Transrespect 2019; ILGA 2020). These data points evidence that a global divide about the legitimacy of LGBTI movements and rights exists. A significant contributing factor in these tensions has been increasing attempts by governments, transnational Civil Society Organizations (CSOs), and intergovernmental institutions (IGOs) at global LGBTI rights diffusion or the prevention thereof. In this complex normative debate, the European Union (EU) stands out as the world’s most visibly active and progressive rights promoter. The EU is not only a major institutional actor on the world stage, but has also become somewhat of a ‘normative power’ (Manners 2002; Whitman 2013) advocating value-based policies in a number of policy areas internationally. Norms are often notoriously vague, but can be conceptualized on a basic level as “a standard of appropriate behavior for actors with a given identity” (Katzenstein 1996, 5). The EU’s promoted core norms, according to Manners (2002), include peace, liberty, democracy, human rights, and rule of law and are often implicitly or explicitly highlighted in exchanges and agreements with external actors. Not only are these provisions part of the EU’s normative catalog, but Manners also identifies anti-discrimination, a major LGBTI policy area, as one of four additional minor norms. Following this normative frame, the EU broadly emphasizes human rights, and within those, LGBTI rights,1 in its DOI: 10.4324/9781003054627-1

2 Introduction internal and external policies. Given the EU’s colonial history and the fact that the bloc collectively represents the world’s largest development actor, it then becomes important to critically interrogate how the EU and its member states promote LGBTI rights internationally, as a number of disputes over those policies have emerged in its foreign relations in recent years. An investigation of the EU’s LGBTI rights policies is also widely significant as it reflects upon Europe’s global role in rights promotion, development policy, and foreign relations – not least because in today’s volatile political environment, LGBTI rights are increasingly contested on national and international levels. From environmental protection to the advancement of LGBTI rights, the 272 member states prominently support policy standards that they developed together and deem important for global coordination. These policies can be imbued with certain normative-ethical reasoning, but they are also often of geostrategic significance (Beringer et al. 2019). In regard to internationally promoted LGBTI rights, EU-advocated equality norms – developed and administered jointly by the executive EU Commission, the co-legislating Parliament and state-led Council, and the diplomatic European External Action Service – are accompanied by conditional stipulations. Given these varied policy arenas from which rights promotion policies emerge, the EU appears to be a rather fragmented normative power in terms of the way sexual rights norms shape the EU’s internal cohesion and subsequently, external actions. Moreover, it is conflicted among member states about the degree to which LGBTI rights should constitute a joint policy, and its global LGBTI human rights promotion is increasingly being questioned as well. Recognizing these issues, several pertinent questions arise: is the EU’s international LGBTI policy promotion conducive to an improvement of LGBTI rights globally or is it (counter)productive of an apparent ‘clash of civilizations’? Are there alternatives to the EU’s often-conditional advocacy of LGBTI rights norms to avoid the contentious reliance on those policies? Does the universalizing cooperation with other international organizations such as the United Nations (UN), or the localizing engagement through enlargement or Neighborhood Policies, make a substantial difference? To investigate these questions, this book not only examines but also critically analyzes the EU’s promotion of LGBTI rights in the international arena. It describes how the region jointly formulates guidelines and policies for the external promotion of such human rights based on different member-state positions. These policies are normatively endowed not only in order to spread liberal-democratic values when engaging global partners but are also developed in an attempt to create a more cohesive identity for the EU. Given the clash over socio-cultural and political values in diplomatic exchanges, the question in how far the EU is, can, or should be a ‘normative power’, one that acts normatively and uses value-based justifications (Manners 2002), is central. Hence LGBTI rights norms do not only hold a

Introduction  3 particular meaning for the construction of common policies within the EU; in their linkage to other policies, they also question the traditional separation of ‘high’ and ‘low’ politics in international relations (IR). In addition, in their universalized but simultaneously rather inconsistent application, they create and maintain (geo)political peripheries and centers. Through the linking of LGBTI rights to tangible privileges or sanctions, these human rights issues have increasingly moved to the center of international diplomacy, signifying a global socio-cultural change. Such a complex and contentious transformation can best be examined through a combination of sociological institutionalist and constructivist theories (Tarrow 2001), enriched by queer theoretical thought. A sociological institutionalist emphasis on the socially constituted nature of the emerging human rights regime (Hall and Taylor 1996), combined with the identity- and interest-based exchanges of actors and institutions as highlighted by constructivist scholars (Wiener 2005), allows for a broader reconceptualization of the politics of human rights in IR. Queer theory posits that, fundamentally, questions of sexual and gender expression and identity need to be approached with nuance and caution, as the performative context and ideological content of issues surrounding ‘LGBTI’ is often neglected or manipulated (Weber 2016). More generally, the buildup of false dichotomies – or binaries, as queer theorists would call them – such as homophile/-phobe or pre/modern states, has detrimental impacts on the construction of diplomatic relations, as the polarized discourse among policy-makers about their countries’ openness toward specific human rights evidences. Undoubtedly, the EU, together with its member states, has contributed to a rights-enabling environment in many countries across the globe, although this norm diffusion simultaneously evokes norm contestation. This book then critically examines the apparent normative tensions between the EU’s Eurocentric conception and promotion of LGBTI rights as human rights and the ensuing politicization among culturally and politically conservative governments that contest the EU’s policies. These opponents develop their own nationalist and/or cultural relativist counter-narrative, arguing that such provisions are immoral and foreign to their culture and society. In order to destabilize these binary tropes, this work dissects the apparent sexual ‘clash of civilizations’ or ‘queer wars’ (Altman and Symons 2016) over LGBTI rights. It points to the problematic character of an overly particularistic rights promotion strategy, recognizing that recipient countries are using the promoted arguments to entrench their own contrary positions in a normative manner. A critical analysis of the emergence, framing and resonance of sexual rights claims dismantles simplistic claims and narratives and helps to uncover alternative perspectives and strategies. To start, the following sections describe the background of the EU’s human rights policy, in which LGBTI rights promotion is embedded and highlights some of the main issues involved in sexual rights advancement. Subsequently, the following chapters are previewed.

4 Introduction

A primer on EU institutions and their role in LGBTI rights promotion In order to understand the EU’s role as global LGBTI rights promoter, it is necessary to comprehend its complex decision-making and policyimplementation structure. This is especially true because no uniform LGBTI rights policy exists that would be mandated or implemented as such across the EU institutions and member states. Rather, these rights policies emerge in a piecemeal fashion, with each institution contributing to this policy area in a different manner depending on its competence to act and the degree of agreement on LGBTI rights. The EU is governed by five main institutions that resemble a national government to some extent. The European Commission, for instance, is composed of one commissioner per member state responsible for a specific EU policy area and, as the Union’s executive body, is in charge of developing new policy proposals. It also supervises the EU budget and policy implementation. It concentrates mostly on EU-internal policies and thus has limited scope in foreign affairs. This means that, in terms of international LGBTI rights, the Commission is limited to monitoring anti- discrimination in potential member states (such as the Balkan states) and adjoining countries that want to associate and receive preferential treatment in the so-called ‘Neighborhood Policy’, for example. In an illustration of its increasing emphasis on this issue, in 2020, the new Equality Commissioner Helena Dalli presented an EU LGBTI equality roadmap, the first of its kind (see Chapter 3 for more details). The European Parliament, made up of 705 members elected by EU citizens to pass EU legislation drafted by the Commission, is a legislative assembly that is generally rights-supportive. One needs to keep in mind, however, that ideological splits among the various parliamentary party groups complicate the issue, as right-wing nationalist parties will take a more critical view of rights attainment strategies than their leftist counterparts. The LGBTI group constitutes the largest so-called ‘intergroup’ in the Parliament, made up of 143 parliamentarians from various parties who are interested in supporting LGBTI rights proposals within and outside the Union. The other body involved in passing EU legislation is the Council (of Ministers), which has the qualities of a senate in that it represents the EU governments. It is made up of the ministers of the member states, who scrutinize EU draft bills for their compatibility with national interests and laws. Importantly, in 2013, the foreign ministers assembled in the Foreign Affairs Council established guidelines for international LGBTI rights promotion and have repeatedly produced declarations supporting it; although their national rights stances can vary significantly. Another important institution, the Court of Justice of the EU, adjudicates in matters of legal competence and has in the past ‘come out’ with a number of LGBTI-friendly judgements, including the symbolically important

Introduction  5 first case on LGBTI rights in 1981 (Van der Vleuten 2014). The Court also transcends EU borders, for instance, when it declared persecution based on sexual orientation a reason for asylum in 2013. The last main institution, the European Council, is composed of the chief executives of the respective member states. Every two to three months, the 27 prime ministers and presidents meet in Brussels to set the general direction of the EU and to provide impulses for its future development. Human rights matters generally do not appear prominently on the agenda of these high-level talks. While this intricate system of governance institutions resembles a national government, the EU lacks concentrated executive leadership, which is dispersed among the institutions and member states. The Commission President (currently, Germany’s Ursula von der Leyen) arguably has the most visible leadership position among the five main institutions, heading the 27 Commissioners and being responsible for draft legislation and budget, and for the dayto-day policy planning and implementation. In the end, however, the national prime ministers and presidents assembled in the EU Council hold the most power by virtue of their national mandates and the collective power of their office. Policy analysts suggested that Commission President von der Leyen “is more willing to speak out on certain human rights abuses when compared to its predecessor—while simultaneously finding agreement on gender rights and LGBT rights a much harder affair” (Godfrey 2021). While not considered one of the main EU institutions, the European External Action Service (EEAS) – the EU’s diplomatic service in existence since 2011 – formulates common policy stances together with the 27 foreign ministers. Under the leadership of the EU’s quasi-foreign minister, the High Representative for Foreign Affairs & Security Policy (currently, Josep Borrel from Spain), the EEAS has developed guidelines to uphold LGBTI rights in the EU’s foreign policy. Taken together, it becomes evident that the formulation and execution of rights policies occurs in a diffused manner. In addition, until 2009, when the EU passed the reform Treaty of Lisbon, most external policies were intergovernmental affairs decided by unanimous agreement of the member states. In sum, the development of LGBTI rights proposals among EU institutions appears rather fragmented, yet with a broad normative background supporting human and minority rights (see Chapter 3).

A short history of the EU’s human and LGBTI rights policies The EU’s various LGBTI rights promotion strategies have gradually evolved from its human rights policy, as no uniform LGBTI policy exists to date. Human rights were an important constitutive marker for Europe when it emerged from the horrific experiences of the Second World War. Initially, most states’ postwar constitutions contained human rights provisions so that a buttressing through the EU’s precursor, the European Community, was not viewed as necessary. The Union only started to link internal human rights

6 Introduction policies with external ones in 1993, when it prescribed them as fundamental criteria for the accession of the newly democratized states of Central- and Eastern Europe to the bloc. This was reinforced by the EU-wide application of the Charter of Fundamental Rights,3 which was devised in 2000 and became legally binding in 2009. Since EU membership nominally stipulates that internal human rights are sufficiently respected, there has been a notable focus on its promotion externally (Thiel 2017). The EU’s commitment to human rights, therefore, aims to contribute to a cohesive identity for the region, to establish itself as a role model for other regional blocs, and to advance a global liberal-democratic order. Based on the early prerogative of regional economic integration, the EU’s external human rights policy developed relatively late, with an emphasis on development policy in which many of the contentious LGBTI rights exchanges still occur today. Initially, the latter had a primary interest in helping post-colonial states to stabilize their trade relations with the region by creating a preferential EU market access scheme. Thus, human rights considerations became more prominent only after the end of the Cold War. Over time, the EU collectively has become the world’s largest donor of roughly 55% of global Official Development assistance (ODA, Keukeleire and Delreux 2014). Williams (2004) posits that EU development policy has matured enough to contain a holistic understanding of and prescription for human rights, but finds that there are inconsistent applications from state to state (and I would add, in this case, from human rights demographic to demographic). The insertion of human rights conditionality within the political dialog in the EU’s agreement with the 79 African, Caribbean, and Pacific (ACP) partners, for instance, stipulates addressing “discrimination of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (EU Official Journal, L287/3 2005). Yet while the quote expresses a general emphasis on human rights, the document does not mention sexual orientation as decisive criteria for antidiscrimination policies, with gender being related solely to women’s rights. Sexual orientation and gender identity (SOGI) issues, however, have become a significant point of contention in bi- and multilateral aid and trade negotiations. Moreover, although EU development policy was a major early vehicle of the EU’s foreign relations, other components such as enlargement and neighborhood policies and intergovernmental diplomatic relations have, over time, become important arenas for the EU’s rights promotion effort and will therefore also be examined in this book. While EU human rights efforts initially targeted Europe’s former colonies, they have now become hallmark principles for all external relations. In terms of the addressees of the EU’s rights promotion efforts, one ought to distinguish the regionally contiguous states that are either accession candidates or strategically important neighbors as well as the Global South countries. The focus on the EU’s neighborhoods in North Africa, Eastern Europe, and Central Asia is often conceptualized as institutionalized rule

Introduction  7 transfer where power asymmetrically favors the EU (Lavenex, in Falkner and Mueller 2014). In fact, Mayall (2005) describes a “pyramid of privilege” that prioritizes relations with third countries depending on the broader geopolitical context. In the Cold War era, relations with the post-colonial ACP states were prioritized and, in the post-Cold War period, the Mediterranean, Eastern European, and Central Asian neighbors joined them. Africa has only recently received increased attention based on refugee and migrant arrivals originating there. The Global South can be understood as the (mostly) post-colonial countries located in the southern hemisphere, which, because of their historic links to Europe, face specific political and socio-economic challenges. A rough characterization would group Latin America, the Middle East, Africa, and Asia together, although country and regional differences, not least in terms of the reception of LGBTI rights promotion efforts, exist. For instance, the early (de)colonialization in South America, coupled with recent democratic transitions that produced vibrant civil societies, has made these states more open to adopting new rights norms (Encarnación 2016). While their stance on human rights tends to be more in line with the EU’s expectations and norms, LGBTI rights are rather problematically advocated in Africa or the Middle East where cultural and political differences are more strongly pronounced. This despite the fact that the UN General Assembly and the UN Human Rights Council, where many of these countries are represented, have adopted declaratory language protecting LGBTI rights holders in 2016 (see Chapter 6). Today, the EU as an originator of these policy promotion attempts finds itself in a crucial period: the various (Euro-, migration-, security-, Brexit, pandemic) crises, along with their lingering effects, have not only weakened the EU’s standing within Europe. They have also led to an extended inward-focus on how to adapt policies and institutions, with a coinciding retreat of the bloc from some international policies. Moreover, the idealized notion of the EU as successful global model of regional integration to be emulated is diminished by the strengthening of national interests and emerging Eurosceptic populist forces across Europe. These factors leave an imprint on the EU’s promotion attempts beyond its borders. Its credibility is also challenged when it advocates rather contentious policies, such as in this case, the promotion of LGBTI rights internationally. This relatively new area of normative policy promotion through the EU and its member states is under-researched, and given the increased visibility of LGBTI issues internationally (Picq and Thiel 2015; Bosia et al. 2020), an examination of these processes is required.

The Janus-face of EU LGBTI rights policy promotion: internal constraints… The EU’s power is fragmented among several main institutions and the member states that regularly diverge on policy proposals expected to be

8 Introduction developed  in  a  consensual manner. This is particularly true for strategies regarding the promotion of LGBTI rights, which is viewed by many, but not all EU policy-makers as a major civil rights issue and a hitherto undervalued activity area; especially so in contrast to comparatively successful women’s rights and more contested migrant rights. Most of these rights norms are not uniformly accepted among member governments, with stark differences between North and West European countries compared to South and East European member states. Aside from the EU’s agency, a variety of contextual factors such as political history and culture, length of exposure to Europeanization, and the degree of democratic consolidation, contribute to this sub-regional divergence (see Chapter 3). Just as the EU’s internal development of a stronger LGBTI equality strategy is hampered by inner EU-ropean divergences, so too is the predominance of national interests an issue in the consolidation of a developmental policy that then could address LGBTI rights externally. For instance, national divisions appeared in 2014 when EU states exhibited differences over whether aid to the Gambia should be frozen due to concerns over LGBTI rights there. While the Northern member states, as forceful advocates of LGBTI rights globally, were strongly in favor of such action, the Southern states pointed out that a reduction in aid may well lead to more displacement of Africans moving to the Mediterranean shores in search of a better life. National interests as well as domestic attitudes toward LGBTI advocacy internationally contribute to the difficulties in formulating a more cohesive and effective rights-based development policy (see Chapter 5). EU-internal coordination issues are not the only reason constraining a coherent international policy for LGBTI equality. They are also the result of the way in which the bloc has advocated same-sex rights within its territory based mainly on two basic premises: on the one hand, the fundamental need for an EU member state to respect human and minority rights, as spelled out by the so-called ‘Copenhagen criteria’ for states wishing to accede (which include an open economy, stable democracy with rule of law and human rights, and the ability to take on all EU laws). Rights improvements are strictly monitored in the accession process, in which candidate countries receive annual progress reports fashioned by the EU’s executive Commission. Once a state becomes a full member, however, conditional pressure ceases to exist, and countries sometimes backtrack on certain stipulations, as it occurred with regressive referenda on banning same-sex unions in Croatia and Slovakia shortly after EU accession. They may also challenge the EU’s joint development of new policies, which is particularly relevant for a novel issue such as LGBTI rights. If a conditional logic exists in the EU candidacy and accession process, on the contrary, the states addressed by the EU’s Neighborhood Policy do not have a membership perspective and thus have little incentive to emulate EU norms (see Chapter 4). On the other hand, once a country joins the EU as member state, the Single-Market provisions emphasize non-discrimination in trade and

Introduction  9 employment through its neoliberal logic. While an anti-discrimination directive on the grounds of religion, gender, age, and sexual orientation exists since 2000, it can only be invoked in the employment sector as the EU has to justify its policies based on the Single-Market treaties and needs to respect national constitutional boundaries. A broader, ‘horizontal’ directive – a directive being the EU’s strongest legal instrument uniformly applied across member states – covering most areas of public and private life has been languishing in the EU’s legislative machinery for years now. Another issue with the current directive is the lack of protection for gender expression, which would include trans* individuals as well. Hence the volatile standing of LGBTI rights in the EU points to further complications when trying to engage other countries. To sum up its internal LGBTI ambivalence, while EU institutions can generally be classified as progressive in LGBTI-affairs, the legal limitations of the Single-Market and the resistance by certain member states constitute obstacles to substantive anti-discrimination and equality. Despite these constraints, the EU and its member states have, for the most part, put in place more substantial gay-friendly policies than even similar liberal democracies such as the US (Wilson 2013). At the same time, we have seen how quickly a single state such as the US can change their LGBTI rights policies, which, for instance, have varied drastically from the Obama to the Trump administration. States find it easier to legislate new domestic policies, as there are fewer veto players than in an international organization containing 27 principals. In principle, it is worth developing a common stance on LGBTI rights as analysts have shown that the EU can, to some degree, influence the socialization of new EU member states into its LGBTI-friendly normative framework (Ayoub and Paternotte 2012). Yet, the internal inconsistency between what could politically and should normatively be done, as opposed to the reality marked by institutional gridlock and competing interests by member states influence the policies that are promoted beyond EU borders.

…and external fuzziness: EU-led promotion of international LGBTI rights norms, conditions, and markets? While the Union seems to have a more unified approach toward the external promotion of LGBTI rights given the consensus of EU institutions formulating this policy, a number of contrasting views exist with regards to how EU-advocated policies should best be diffused abroad. The rationalist– realist school perceives of the EU’s relations largely as a variable of its political power and economic might, be it in the way the bloc initiates trade and developmental agreements, constructs special associative relationships with individual countries or regions, or posits conditions for accession to the bloc (Andreatta 2005). From this utilitarian perspective often held by policy-makers, follows that the EU’s influence will be largely dependent on

10 Introduction its economic performance and the extent of its negotiating power when engaging third countries (i.e. non-EU states). In a similar vein, Bretherton and Vogler (2013) highlight three interrelated concepts of EU presence, denoting EU status and influence, as well opportunity structure, meaning the external context of EU action, and capability as the constitution of EU policies, as determining variables. They contend that EU actorness and internal and external strategic factors are significant predictors in achieving policy outcomes. Given the volatility of the EU, it is doubtful that its economic influence or political presence can lead countries to want to follow. Moreover, the external context in LGBTI rights promotion is also rather problematic in that EU counterparts have started to develop their own cultural or political counter-narrative to what they perceive as ‘interventionist’ policy promotion, often supported by powerful illiberal states. Hence its capability is similarly constrained. On the opposite end of the spectrum, there are scholars who view the EU as a significant ‘normative power’ (Manners 2002) committed to advancing peace, liberty, human rights, and anti-discrimination. The normative power Europe (NPE) concept is important for this work since the promotion of LGBTI rights references normative content extensively (see Chapter 2). This theory holds that the EU’s conviction and good example may have a positive emulation effect on other states, in addition to material or geostrategic factors. In its updated neo-normative rendering, this perspective also moves away from its focus on governmental power and perceives the EU’s normative strength as the interactive result of its goals, means, and justifications (Whitman 2013). Despite its ubiquity, the NPE theory has been contested since its inception because it was viewed as not conforming to reality, overly generalizing, and appearing Eurocentric (Hansen and Marsh 2015). Independent of its conformance with reality, the EU’s over-reliance on normative reasoning has led to pushback by many countries in the Global South and created a situation in which contrarian norms of cultural protection, relativism, and national purity question the EU’s liberal norms, as will become evident throughout this book. A few scholars have staked out a middle ground between these two opposing theories: Zielonka (2008) and Ferreira-Pereira (2010) both argue that the EU needs to be a ‘model power’ with both notions of a convincing ‘model’ and a ‘power’ful international actor being requisites for a successful diffusion of EU-advocated policies. Such reasoning implies “that European norms can also work for them and provide incentives for adopting these norms” (Zielonka 2008, 483). They applied the powerful model concept to EU social and environmental as well as security and democracy promotion activities, respectively. In its ideal type, “modeling stimuli are intentionally engendered by the EU to secure and promote European interests, although they can ultimately contribute to a ‘better world’” (Ferreira-Pereira, 299). In the same vein, Ferreira-Pereira argues that the EU should distinguish itself by systematically and positively reinforcing imitative responses by

Introduction  11 cooperation partners (300) – although it is not exactly specified how such reinforcement of modeling responses could occur. In this version, norms would not necessarily be promoted because of their intrinsic value, but because there is also some (added) value to adopting them. It still, however, presupposes normative strength and leaves limited room for norm negotiation. The next chapter will delve into a theoretical investigation of the appropriateness of the EU’s norm promotion policy, given its internal and external constraints. A number of additional issues with sexual rights promotion have been captured by activists presenting a bottom-up perspective on this complex policy. They decry the incoherencies between development policies and foreign and trade policies of donor countries; the power dynamics between North and South and between former colony and colonizer; the systematic marginalization of sexual and reproductive rights; the division between civil and political rights, on the one hand, and economic and social rights, on the other; a sort of disconnection between North and South based organizations. (Anguita 2012) These agent-based as well as structural factors run like a red thread throughout this book. Based on these concerns, it not only concentrates on concrete policy prescriptions that are at the disposal when LGBTI rights are promoted but also probes the rationale of norm promotion by the EU more generally through a combination of sociological institutionalism and queer theory; thus, it enables a critical de- and re-construction of problematic binaries emerging between LGBTI rights promoters and opponents. In its attempt to multilaterally engage other IGOs over human rights, the EU accesses and strategically uses the UN organizations. In 2013, a group of about ten progressive UN countries, including three EU members, and the EU High Representative for Foreign & Security Policy leading the EU’s diplomatic service, came together to form the UN LGBTI Core Group to advance SOGI-based rights. Two of the group’s four main activity areas specifically target countries in the Global South, such as raising LGBTI issues in dialogs with third countries and promoting LGBTI civil society in those countries with the financial help of the Union (EU Delegation to the UN 2014). However, coordination issues such as the fragmentation of EU legislative, representative, and executive functions as they relate to international governance, and the aforementioned variability of interests by member states limit the EU’s effectiveness in multilateral rights promotion. Overall, the linkage between both institutions on this issue is strong, and it appears that this venue is well placed to diffuse LGBTI-friendly policies more broadly, yet at the same time, less focused given their contested status at the UN.

12 Introduction As Karen Smith (2014) succinctly summarizes with regards to the overarching issues in the EU’s external engagement, the EU’s diverging interests in the formulation of a human rights policy inhibits a forceful engagement with its development partners. Different priorities prevent the diffusion of a uniform message and its reinforcement with various incentivizing or pressuring means, be they visa liberalization and market access, conditional aid loans, or even sanctions. On the receiving end, the EU-advocated democracy and human rights priorities are unlikely to find much resonance in the differently ordered strategic priorities of ASEAN or the African Union, for example.

Political strategies and their challenges Given the aforementioned institutional and structural shortcomings, improved political strategies may be more easily achieved as they are more flexible. In addition, they can be applied in a number of political settings through tactical ‘venue-shopping’ by various (non)governmental actors choosing the most receptive political arena. Those listed below are intended to provide an overview of promising policy strategies, which will be critically examined in the following chapters in more detail. One important scheme is the inclusion of the expertise of civil society, whether EU-based or not, working in tandem with the formal EU institutional actors. Internally, the creation of the EU Fundamental Rights Agency in 2008 has provided an arena for the exchange of expertise between transnational European human rights CSOs, including ILGA-Europe and other LGBTI rights organizations, and EU policy-makers. Considering the growing networking abilities of those civil society actors transnationally, a number of non-EU NGOs are already affiliated with European human and sexual rights groups. To illustrate that linkage, Friedman (2012) highlights how “Spanish funding, Spanish strategy and Spanish influence all helped Argentine activists to achieve equal marriage rights in the face of internal differences and external opposition” (30). This is not to say that the relationship is unidirectional, as European CSOs equally rely on the input and localized knowledge of Global South CSOs to legitimize themselves. Furthermore, Munro and Pérez-Sánchez (2017) remind us that transnational activism from the South undermines a strict power-based distinction between Global North stewardship and Global South adaptation. Yet, there seems much room for additional engagement in this bottom-up approach, as many EU-based LGBTI rights organizations remain focused on their European member-state organizations and extend their reach primarily to civil society in potential enlargement candidates or Neighborhood countries. The collaboration of CSOs with governmental stakeholders also potentially runs the risk of delegitimizing the organization’s credibility in the eyes of the ones pursuing a more radical-transgressive queer agenda or want CSOs to adapt more strongly to local conditions.

Introduction  13 On a global civil society level, ILGA’s World Conferences consist of meetings of LGBTI advocates around the globe. Despite providing institutional platforms for groups such as ILGA-Europe, COC Holland, or RFSL Sweden that channel support into IGOs, these gatherings lack a strong institutional linkage to the UN or other intergovernmental bodies. For instance, in the UN’s ECOSOC body composed of thousands of transnational CSOs, only about a dozen of LGBTI rights groups are accredited. This means that LGBTI-focused transnational CSOs in and outside the EU need to play two-level games; they need to be active on both domestic and international levels in order to exert pressure on non-compliant states and attain the requisite intergovernmental support for policy changes. In this global arena, the normative disparity between more progressive LGBTI advocacy groups from EU member states and their counterparts in target countries becomes evident. A researcher at Human Rights Watch succinctly pointed out this issue when she declared that As the US- and Europe-based LGBTI movements accomplish a lot of what they’ve been working for at home, they’re discovering the rest of the world and trying to help – and that kind of commitment doesn’t necessarily mean they’re developing their engagements in the most constructive way. (IRIN 2014) By antagonistically pushing policy proposals in international fora, Western (non)state actors run the risk of not only polarizing the intended audience of governmental decision-makers but also putting an expository spotlight on domestic LGBTI constituencies that were previously protected by their invisibility (see Chapter 6). The linking of LGBTI rights promotion to other policy areas such as generalized human rights, good governance, and economic development has its own issues. Connecting one policy objective to another may in theory be a way to set conditions and mainstream LGBTI rights in all policy areas that are under debate, but blockage in one policy area may spill over into related ones. The conditional linking of policy issues can be utilized not only by EU representatives, but this strategy can also be instrumentalized by Global South countries strategically, for instance when highlighting migrant rights at joint EU–AU summits. For all these reasons, the outright conditioning of aid disbursement on LGBTI rights implementation is problematic, particularly when countries are sanctioned for not adhering to EU standards rather than incentivized to emulate those (for more, see Chapter 5). Last, the regular and systematic re-evaluation of existing policy instruments is essential to track successes and failures and improve their ongoing reformulation. The EU’s development and human rights policies, as most others, are planned and implemented over a period of several years. This

14 Introduction provides an opportunity to reflect on those policy strategies in fixed intervals in order to adjust and refine. In fact, the EU Commission’s external relations directorate general (DG) conducted in 2014 a study about the bilateral human rights policy dialog contained in the EU’s ODA treaty to its main development partners and spelled out a number of recommendations. The most important ones are to develop a more strategic and structured approach to political dialog and thus enhance its legitimacy to ensure a result-oriented monitoring and to fully exploit the potential of programs and financial instruments. These prescriptions highlight the need to conduct dialogs more systematically and to invest more time and energy in legitimizing such negotiations in the eyes of both partners. Furthermore, following up with recipient states and positively incentivizing them by means of various geographic and programmatic funding mechanisms represent an additional key component (EU DG External Relations 2014). The issue of homosexuality appears as a consistent issue in negotiations, but the country reports evidence that each domestic situation (from Antigua to Zimbabwe) is different and thus needs to be addressed accordingly. Yet contrasting priorities within the EU, the polarization over sexual rights, and limited resources constrain subsequent improvements. This book, then, is an attempt to reconceptualize existing LGBTI policy strategies, highlight normative incongruences, and suggest possible avenues for theoretical as well as policy-relevant interventions.

Conclusion: why analyzing EU LGBTI rights policy is important for international relations A mixed picture with certain trade-offs in the international promotion of EU LGBTI rights emerges. A number of self-inflicted problems with the EU’s strong normative advancement of particular human rights policies emerge: if human rights are inherent and provide, among other things, for freedom from governmental interference, how can a supranational organization justify becoming the provider of specific human rights? This question becomes more pressing as these overtures are often made asymmetrically vis-a-vis Global South countries, potentially clashing with local cultural rights that may not be as tolerant or liberal. And how can the negative effects of normative rights advocacy be mitigated when they may lead to international counter-mobilization and domestic politicization of LGBTI individuals? Any observer of transnational LGBTI advocacy must have noticed how the recognition of sexual citizenship with the attendant rights has become the hallmark of ‘Western’ modernity (Rahman 2015). The conditioning of aid, trade, and good relations on the attainment of LGBTI rights further serves to reinforce a Global South perception that LGBTI sexualities are a Eurocentric concept and a pretext for neoliberal trade promotion and neo-colonial intervention. Thus, the EU’s support for LGBTI rights internationally, while often being considered a peripheral low-politics issue,

Introduction  15 reflects critically on salient issues in IR such as the (increasingly questioned) promise of liberal internationalism. A lack of self-reflective understanding surrounding the issue exists, as most policy efforts and scholarly research concentrate on the creation of more powerful advocacy strategies by (non/inter)governmental actors. Thus far, the forceful promotion of LGBTI rights, often by conditionally linking aid and sexual rights, has produced ambiguous results. Approaching civil society more broadly in order to create more generalized supportive human rights environments in target states may prove more effective. These CSOs need to be locally embedded and their expertise substantially integrated in EU programming. While civil society is an important amplifier of EU-promoted policies in the national or local arena, the work with national human rights institutions or globally with UN offices provides an added channel of influence that may be perceived of as less interventionist than supporting LGBTI advocacy groups in foreign countries. No matter whether EU LGBTI rights are conditional, linked to other policies, or normatively or instrumentally advocated as such, they are best approached in a number of venues simultaneously, with strategies that best fit the individual country and protects the affected constituency. A more radically queer, anti-normative vision would be to abandon EU-dependent LGBTI rights promotion altogether. Such an approach, however, would renege on human rights norms and on a generally supportive international institution. It is important to recognize that the policies generated inside the EU, no matter whether by courts, civil societies, or the main institutions, have an impact outside as well, be it through pull-factors created by the European rights regime or the construction of developmental policies in coordination with target countries. This work, therefore, contributes to finding more appropriate ways of expressing EU solidarity with LGBTI individuals globally. The analysis of this EU policy in its international repercussions, questions and reconfigures what can be classified as domestic and international. In an age in which ideas seem to float freely across the globe and reach more people than ever before, an exploration of the EU’s international rights promotion efforts constitutes an ideal case for capturing the transformation that IR are undergoing in the 21st century.

Chapter previews The question of the EU’s normativity in human rights matters has become particularly pressing in the past few years as the EU’s international actorness has diminished due to various economic and political challenges. At the same time, the EU’s external relations have undergone significant reforms since the Lisbon reform treaty of 2009. LGBTI rights promotion also operates in a difficult terrain, in which such normative overtures are entangled with conditional geopolitical aid disbursements. The second chapter establishes the theoretical framework by examining the often-criticized

16 Introduction ‘normative power Europe’ concept. It focuses on the conceptual emergence of ‘LGBTI rights’, the incongruence of the EU’s normative advances, and norm diffusion in IR more generally. Chapter 3 highlights the extent to which a disparity among EU member states exists when developing and implementing LGBTI rights promotion strategies. A major East–West difference in domestic LGBTI rights across member states conditions the rather weak EU consensus on the EU LGBTI rights norm creation, with former communist EU member countries exhibiting a delimited tolerance for LGBTI rights. Many of these dispute the validity of the LGBTI rights pushed by Western member states and feel that they themselves are closer to external states on this issue. In addition, each EU member state has different relations with the recipients of these policies, engaging particularly with their former colonies. A broad diffusion of all kinds of EU foreign policies through the lens of each EU member states interacting with non-EU states, be they former colonies or not, occurs. This further weakens a uniform development and application of policies. The fourth chapter uses analyzes the supposedly most successful case of EU human rights norm promotion in countries that aim to join the Union. In these cases, the accession criteria clearly specify a respect for fundamental and minority rights (the so-called ‘Copenhagen Criteria’), which prospective candidates need to heed. The incentive for this change in policy is EU membership. Once acceded, however, states sometimes opt to fall back on more regressive, homophobe legislation, for example, through popular referenda revoking initial parliamentary approval of certain LGBTI rights. And in countries in the EU’s specified ‘neighborhood’, where the accession perspective remains distant, the EU’s leverage diminishes significantly. These countries, ranging from Ukraine to the states in North Africa, already feel that they have been distanced from the EU. In addition, since there is no real incentive in exchange for trade or aid concessions, reform in terms of LGBTI rights, there is rather slow or completely lacking. The juxtaposition of both foreign policies, taking into account EUrophobia, homophobia, and Islamophobia, aptly illustrates the dilemma the EU faces when promoting LGBTI rights in a more adverse geopolitical environment. Chapter 5 focuses on the EU’s conditional development and aid policies. Varying commitments by EU member states to common EU ODA provisions, different geographical preferences according to national interests, and the primacy of establishing trade relations make a coherent development policy difficult to achieve. The insertion of human rights conditionality within most aid-related political agreements ensures, on the one hand, that human rights more generally are seen as a broader aspiration. Disputes with individual recipient countries such as examined in the case of Uganda, or even more subtle tensions over LGBTI rights in the case studies of Indonesia or Jamaica, evidence the volatile and particularistic strategy the EU pursues. Such differences create a normative binary that is difficult to resolve, particularly when the EU’s human and LGBTI rights agenda is viewed as

Introduction

17

hypocritical in the face of its protectionist trade, ‘nationalist’ security, and refugee policies. In this process, the EU, as well as its development partners, create opposing normative narratives that entrench their own superior position and make dialog and negotiation more difficult. The next chapter analyzes how the EU accesses and strategically cooperates with other intergovernmental organizations (IGOs) in the UN system. It highlights normative, political, and institutional issues that make global rights promotion more challenging. In the UN, the EU member states pursue their own policies as well, but the EU’s diplomatic service is the main connecting point in this regard. The UN system is well-placed to diffuse LGBTI-friendly policies more broadly, yet less focused. The World Bank consists of a more specific, narrow venue in terms of their relationship to the EU and developing countries. And despite potential opportunities in engaging other regional IGOs, the EU’s increasing emphasis on LGBTI rights provisions in inter-regional relations has been met with resistance. Thus, it seems unlikely that a stronger collaboration between these IGOs will achieve a more adequate internationalized response to this normative challenge. The final chapter synthesizes the previous ones and critically reflects on the issues at hand. Given the normative disparities, geopolitical pressures, and relative ineffectiveness of the EU’s LGBTI promotion thus far, it questions whether or not subsuming LGBTI rights under more generalized civil society, human rights, and democracy promotion efforts would be an improvement. While this would be a more generalist strategy with a potentially less controversial normative content, such expanded foci can be viewed as geopolitically problematic in their own right. Rethinking existing LGBTI rights promotion, several pathways should be considered, and likely all available means should be utilized simultaneously. The conclusion does not purport to suggest a firm solution but rather points out that a change of course may be more useful, as long as it emerges out of a self-reflective process. The EU’s human rights promotion policies, in particular, where LGBTI rights are concerned, have been beset with a number of issues in the past, so that only gradual improvements can take place. Despite the challenges, reforms ought to take place given the current weakness of the EU’s external role, its historical obligation, and the volatility of LGBTI populations around the globe.

Notes 1 Despite a number of possible variations and an ongoing debate about the inclusion of additional categories (see: Picq and Thiel 2015, 5), L(esbian), G(ay), B(isexual), T(ransgender), and I(ntersex) (LGBTI) is used by EU institutions and thus will be used in this book as well. 2 Twenty-eight states until 2020, when the United Kingdom officially left the EU. 3 A differentiation exists between human rights accorded to EU citizens and residents called ‘fundamental rights’, and ‘human rights’ available to individuals outside the bloc.

18 Introduction

References Altman, Dennis and Jonathan Symons. 2015. Queer Wars. London: Wiley. Andreatta, Filippo. 2005. “Theory and the EU’s International Relations”, in: Hill, Christopher and Michael Smith, eds. International Relations and the EU. New York: Oxford University Press, 18–38. Anguita, Luis. 2012. “Aid Conditionality and Respect for LGBTI People Rights”, Sexuality Watch Policy Paper, no. 7. Ayoub, Phillip M. 2015. “Contested Norms in New-Adopter States: International Determinants of LGBT Rights Legislation.” European Journal of International Relations 21 (2): 293–322. Ayoub, Phillip and David Paternotte. 2012. “Building Europe.” Perspective on Europe 42 (1): 51–70. Spring. Beringer, Sarah L., Sylvia Maier, and Markus Thiel, eds. 2019. EU Development Policies: Between Norms and Geopolitics. 1st ed. London: Palgrave. Council of the EU. “Guidelines for the Protection of LGBTI Individuals”, http:// www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/137584. pdf, accessed February 3, 2015. Delegation of EU at the UN. 2014. http://eu-un.europa.eu/articles/en/article_14003_ en.htm, accessed February 3, 2015. Encarnación, Omar. 2016. Out in the Periphery: Latin America’s Gay Rights Revolution. New York: Oxford University Press. EU Directorate General External Relations. 2014. “Study on the Political Dialogue on Human Rights of the Cotonou Agreement”, http://www.europarl.europa.eu/ meetdocs/2009_2014/documents/deve/dv/study_political_dialogue_/study_ political_dialogue_en.pdf, accessed January 14, 2015. EU Fundamental Rights Agency. “LGBTI Survey 2019”, https://fra.europa.eu/sites/ default/files/fra_uploads/fra-2020-lgbti-equality_en.pdf, accessed May 15, 2020. EU Official Journal. 2005. “Coutonou Agreement (Revised)”, http://www.acp.int/ sites/acpsec.waw.be/files/accord_cotonou_revise_2010_en.pdf, accessed January 14, 2015. European Parliament Intergroup on LGBTI Rights. http://www.LGBTI-ep.eu/tag/ united-nations, accessed February 2, 2015. Falkner, Gerda and Patrick Mueller. 2014. EU Policies in a Global Perspective. New York: Routledge. Ferreira-Pereira, Laura and Federiga Bindi. 2010. The Foreign Policy of the EU. Washington, DC: Brookings Institution Press. Friedman, Elisabeth J. 2012. “Constructing the ‘Same Rights with the Same Names’: The Impact of Spanish Norm Diffusion on Marriage Equality in Argentina.” Latin American Politics & Society 54: 112–136. Godfrey, Ken. 2021. “Is the EU Willing to Defend Human Rights Globally?” Carnegie Europe, https://carnegieeurope.eu/strategiceurope/83812?, accessed January 31, 2021. Hall, Peter A. and Rosemary C. R. Taylor. 1996. “Political Science and the Three New Institutionalisms.” Political Studies 44 (5): 936–957. Hansen, Susanne T. and Nicholas Marsh. 2015. “Normative Power and Organized Hypocrisy: European Union Member States’ Arms Export to Libya.” European Security 24(2): 264–286. https://doi.org/10.1080/09662839.2014.967763. ILGA, State Sponsored Homophobia Report, 2020, https://ilga.org/statesponsored-homophobia-report, accessed May 12, 2021.

Introduction  19 IRIN News. 2014. “UN Office for the Coordination of Humanitarian Affairs, LGBTII Rights – Still Not There Yet”, August 14, http://www.irinnews.org/ report/100487/LGBTIi-rights-still-not-there-yet, accessed January 14, 2015. Katzenstein, Peter. 1996. The Culture of National Security: Norms and Identity in World Politics. New York: Columbia University Press. Keukeleire, Stephan and Tom Delreux. 2014. The Foreign Policy of the European Union. 2nd ed. London: Red Globe Press. Manners, Ian. 2002. “Normative Power Europe: A Contradiction in Terms?” Journal of Common Market Studies 40 (2): 235–258. Mayall, James. 2005. “The Shadow of Empire”, in: Hill, Christopher and Michael Smith, eds. International Relations and the EU. New York: Oxford University Press, 292–316. Munro, Brenna and Gema Pérez-Sánchez. 2017. “Thinking Queer Activism Transnationally”, Issue 14, 2, http://sfonline.barnard.edu/thinking-queer-activismtransnationally/introduction-thinking-queer-activism-transnationally/0/. Picq, Manuela and Markus Thiel, eds. Sexualities in World Politics. New York: Routledge. Rahman, Momin. 2015. “Sexual Diffusion and Conceptual Confusions: Homosexualities, Muslim Cultures and Modernity”, in: Picq, Manuela and Markus Thiel, eds. Sexualities in World Politics. New York: Routledge, 92–107. Smith, Karen. 2014. “The EU as Diplomatic Actor in the Field of Human Rights”, in: Koops, Joachim Alexander and Gjovalin Macaj, eds. The European Union as a Diplomatic Actor. 1st ed. Basingstoke: Palgrave Macmillan. Tarrow, Sidney. 2001. “Transnational Politics: Contention and Institutions in International Politics.” Annual Review of Political Science 4: 1–20. Thiel, Markus. 2017. European Civil Society & Human Rights Advocacy. Philadelphia: University of Pennsylvania Press. Transrespect. 2019. “Trans-Murder Monitoring Report”, https://transrespect. org/wp-content/uploads/2019/11/TvT_TMM_TDoR2019_Infographics_EN.jpg, accessed January 8, 2021. Van der Vleuten, Anna. 2014. “Transnational LGBTI Activism and the European Courts”, in: Ayoub, Phillip and David Paternotte, eds. LGBT Activism and the Making of Europe: A Rainbow Europe? Basingstoke: Palgrave, 119–144. Weber, Cynthia. 2016. Queer International Relations: Sovereignty, Sexuality and the Will to Knowledge. New York: Oxford University Press. Whitman, Richard. 2013. Norms. Power and Europe. Edited by R. Whitman. New York: Palgrave. Wiener, Antje. 2005. “Constructivism and Sociological Institutionalism”, in: Bourne, Angela K. and Michelle Cini, eds. Palgrave Advances in European Union Studies. Basingstoke: Palgrave Macmillan. https://doi.org/10.1057/9780230522671. Williams, Andrew. 2004. EU Human Rights Policies: A Study in Irony. New York: Oxford University Press. Wilson, Angelia R. 2014. Why Europe Is Lesbian and Gay Friendly (and Why America Never Will Be). Albany: State University of New York Press. Zielonka, Jan. 2008. “Europe as a Global Actor: Empire by Example?” International Affairs 84 (3): 471–484.

2

From norm diffusion to norm contestation Europe as a normative actor

We became aware of the existence of a right to have rights […] and a right to belong to some kind of organized community, only when millions of people emerged who had lost and could not regain these rights because of the new global political situation. Hannah Arendt, The Origins of Totalitarianism

Arendt’s (1951) famous quote highlighting the “right to have rights”, the preconditioning of human rights as being recognized as a member of a political community, is quite in fashion these days. Originally, its meaning was viewed as a qualification of the universality of human rights decreed only a few years earlier in the UN’s Declaration of Human Rights (UDHR). Whether in the context of increasing migration, stateless ethnic minorities, or in the case of LGBTI individuals, Arendt’s critical statement that one first needs to claim and be awarded the fundamental right of participation in a state in order to obtain any kind of human right foreshadows some of the major issues of today’s internationalized norm diffusion politics. These include the statist validation of constitutive rights, the performativity of human rights advocacy, and the contention over the validity of rights, all of which qualify the inherent dignity of human beings. The ‘right to have rights’ insists that politics is about negotiating the participatory boundaries of a political community (Degooyer and Hunt 2018), no matter how strong, for instance, international norms for the adoption of LGBTI rights may be institutionalized. Such differentiation is in large part based on the tension between the stipulated universality of human rights and the co-existing right of cultural difference, making human rights simultaneously universal and particularistic. Viewed this way, a purely universal reaffirmation of LGBTI rights has limited normative value if it comes before the domestic claiming and recognition, of members of this community in their respective states. It may end up being considered a baseless rights claim in the domestic context in which rights-holders live and also viewed as a paternalistic-imperialist project (Ingram 2008). Based on these insights, the scholarly field of human rights research has traced the ‘human rights revolution’ occurring in DOI: 10.4324/9781003054627-2

From norm diffusion to norm contestation  21 practice (Risse et al. 2013), but has also more recently developed a critical view of human rights attainment (Hopgood 2013; Moyn 2018). This chapter theorizes the complexities of contemporary internationalized rights politics, with a focus on the human and LGBTI rights genealogy and the EU’s role in it. Before examining the ambivalent promotion of human rights through the EU and its member states more closely, a critical analysis of the genesis of these rights needs to be established so as to avoid a narrow epistemological outlook. Major milestones in the development of human rights in Europe are said to be the British Magna Charta of 1215 and the French Declaration of the Rights of Man and of the Citizen of 1789. Just as was true then, human rights in the modern era have mostly been reserved for specific privileged populations, with limitations set for women, foreigners, and ethno-religious minorities or slaves, for example. Despite the relevance of European enlightenment thought for the evolution and expansion of these rights, earlier rudimentary codices existed around the world that established justice among non-European civilizations. Hence, the specifically European development of a particular view of human rights marked by disenfranchisement and colonialization limits the conceptual power of the notion of human rights that so often characterizes a Western outlook on those. Barreto (2012) highlights this contingency when declaring that: contextualizing theories of human rights means showing the genealogical connection that ties the Eurocentric theory of rights to the historical setting in which it was elaborated. Unveiling the linkage to the site of emergence of knowledge weakens or destroys the legitimacy of claims to universality. The dominant theory is no longer “the” theory of human rights, but just a theory born in the background of the history of Europe and, as a consequence, has no claim to be universally compelling. (10) Similarly, Picq (2018) states that “universalism is invoked to assert European superiority over other cultures: to cover up discrimination against non- European cultures instead of recognizing claims for difference” (149). Despite this particularistic construction of Eurocentric human rights, the EU, with its self-proclaimed rights exceptionalism, aims to lead the rest of the world according to its measure (Chakrabarty 2007). Recognizing this inadequate perspective, concepts such as universality, cosmopolitanism, and ‘the international’ are increasingly questioned and challenged by critical International Relations (IR) scholars as outdated Eurocentric modernization concepts (Barreto 2012; Bigo 2016). In acknowledging these limitations, this chapter aims to contextualize a specifically European view of human and more specifically, LGBTI rights, to establish how this particular perspective imprints on the reception of rights promotion attempts by the EU. Rather than to universalize the EU’s rights stance, it may be essential to

22  From norm diffusion to norm contestation ‘provincialize’ EU policy (Chakrabarty 2007), as it reflects an inherent Eurocentrism that cannot, but in practice does, expect the same results outside Europe as within its borders. As the next chapter shows, even within the region, it produces inconsistent results. Consequently, this outlook prevents the EU from being a more adaptable global actor by promoting policies that do not resonate in dissimilar localities. Emulating Krishna’s (2001) idea of willful amnesia, one could argue that a universal view of abstract human rights conveniently sidelines Europe’s problematic history in this regard and the idiosyncratic implementation of those after the Second World War. This includes a lack of recognition by liberal internationalists that human rights may not only be at risk in domestic settings but can also be threatened by neoliberal or interventionist global actors and structures as well (Rao 2010). These apparent blind spots in European rights promotion can be generalized to the fields of European and EU foreign policies as well as to IR more generally. Scholars have already prominently called for the emergence of a less Euro- and Anglocentric ‘global IR’ that is less epistemologically and methodologically narrow. The inclusion of more globally diverse analytical approaches necessitates stressing theoretical pluralism and the rejection of singular-universal truth claims (Acharya 2016). Thus far, however, relatively little attention has been paid to the Eurocentricity of human rights norms, although post-colonial theories, as well as critical race theory and feminist and queer theories, have contributed to this emerging field of scholarly inquiry. The EU institutions, however, have hardly incorporated any of this critical thought into their internal or external rights promotion policies. From the moment of its creation, the EU aimed to be a normative actor. Born out of the aftershocks of the Second World War, the initial member states of the EU’s precursor, the Coal and Steel Community, sought to unify European countries. Economic interdependence was pursued in an effort to maintain peace and liberty for their populations. Over time, the broadening of the bloc’s objectives, alongside the increase in member states covering the large majority of European states, resulted in more political goals added to pre-existing market-based ones. Hence a political ‘Union’ emerged out of an economic community in 1993. Around the same time, the end of the Cold War resulted in the establishment of largely normative membership principles – the so-called ‘Copenhagen Criteria’ for aspiring members. These prominently included “democracy, the rule of law, human rights and respect for and protection of minorities” (European Commission 2016). At the turn of the millennium, the European Charter of Fundamental Rights established further civil, social, economic, and political rights for citizens in relation to EU institutions. There have been concerns, however, about the EU’s appropriation of national constitutional rights provisions (Smismans 2010). These materialize in debates over the legitimacy of norm advocacy by an international organization, for example during the discussions about the EU’s rule-of-law monitoring for member states, which could lead

From norm diffusion to norm contestation  23 to stricter internal rights conditionality for membership. Those discussions have mainly been centered around the degree to which the EU institutions should advocate values and principles against member states. While the next chapter examines such EU-internal issues in the attempted construction of a coherent LGBTI rights policy, here, the focus is on the normative frame of the EU’s international norm promotion. Below, I conduct a genealogical inquiry into the human rights for LGBTI individuals as derived from women’s rights, before critically interrogating the EU’s external promotion of these rights in-between theory and practice. Theoretically, EU values manifest in commonly held norms that are at the same time constitutive-fundamental to its political identity (such as consensus-seeking in negotiations, multi-institutional pluralist representation and adherence to democratic principles, rule of law and human rights) as well as regulative-permissive (for instance, the EU’s binding treaties, or the concrete policies emerging as a result of the EU’s political-legislative output and Courts adjudication). These principles transgress the EU’s ‘domestic/ international’ divide as they often apply to both its regional and international policies. Norms as such are defined in a number of ways, for example as “standards of behavior defined in terms of rights and obligations” (Krasner 1982, 185), which highlights the main point about the expected behavior and also frames them through an interplay of rights and duties. Applied here, it means that norm promotion entails the signaling of entitlements and obligations that go hand in hand with behavioral standard-setting. As a result, SOGI norms similarly contain a mix of constitutive and regulative components, which makes them ambiguous promotion material. As opposed to internal rights promotion, the role of values and norms in the EU’s IR is of a different magnitude and has varying impacts. As Lucarelli and Manners (2006) explain, the bloc’s foreign relations have consistently been characterized by the promotion and maintenance of values integral to the Union in almost every area of politics from trade to development to security. Yet, they acknowledge that there are issues with the consistency with which they are applied, especially when power politics come into play. For instance, as Medinilla and Teevan (2020) have pointed out with regard to the EU’s relations with African countries: African leaders in particular have developed a certain normative fatigue when it comes to the EU. The EU, in turn, appears to be caught in an internal struggle between advancing its strategic interests in Africa and projecting its normative model. (16) Because of the centrality of socially and politically clashing values in diplomatic exchanges, the question of the EU’s ‘normative power’ is central. This inquiry has become particularly pressing in the past few years as EU’s international influence has diminished somewhat due to various economic and

24  From norm diffusion to norm contestation political challenges, while its external relations have undergone significant upgrades and reforms in the past decade. LGBTI rights promotion operates in a difficult terrain, in which such normative overtures tend to be entangled with conditional geopolitical offerings such as accession to the EU, trade access, or aid disbursements, as the following chapters show. The following sections establish the theoretical framework by critically interrogating the linkage of SOGI-based rights to the heavily discussed ‘normative power Europe’ concept. As will be highlighted below, however, these rights are largely neoliberally and homonormatively (i.e. depoliticized and hetero-centric) conceived and justified and have emerged as a hallmark signature issue of Europe’s human rights policy. Moreover, alternative conceptions will shed light on norm-critical positions regarding moral international orders that are advanced by Queer theory.

LGBTI rights grounded in feminism Feminist theory and practice have in many ways set the stage for the vibrant LGBTI advocacy, its normative prescriptions, and scholarly engagement with the topic. Admittedly, just as gender perspectives have been marginalized in European politics, until recently, so too have LGBTI studies been relegated to an inferior position within IR and even within gender studies, based on their novelty, queerness, and apparent marginality. Even ‘gender’ as an umbrella term largely emphasizes women, at least as widely understood in ‘gender equality’ or ‘gender mainstreaming’ policies, at the expense of more diverse SOGI articulations. This parallels the gendered hierarchies of power relations, which, applied to SOGI issues, highlight the varying degrees of visibility and equality that subjects experience based on their standing within the ‘LGBTI’ group. In her gender rights historiography, Towns (2017) destabilizes a Eurocentric ascription of women’s rights to Europe, as women exercised political power across the world at a time when those were curtailed on the continent. Feminist movements in the 20th century not only effectively targeted domestic governments and international bodies such as the UN but they also saw the need to ally with related (labor, sexual equality) movements and integrate gender policies into the larger emerging human rights activity field (Caglar et al. 2013). Even within the UN’s evolution of women’s rights, a distinct difference in emphases became visible: Whereas Western/Northern advocates highlighted issues of sexuality and equality with men, Southern feminists pressed the issue of women in economic development and were hesitant to engage in more contentious issues (Weitz 2019, 417). Given the EU’s smaller membership scope, and its supranational legal character, gender advocacy, using the same strategies, was even more consensual and successful there (Van der Vleuten 2012). These feminist movement tactics dovetailed with LGBTI movements: UN activists based their rights claims on the UN’s 1979 established Convention for the Elimination of Discrimination Against Women (CEDAW) and connected

From norm diffusion to norm contestation  25 their causes in the EU to establish gender equality regulations. They thus managed to strategically frame and connect issues so that they would be taken up by EU institutions and/or member states, aligned with similar advocacy groups, and foregrounded general human rights provisions to promote LGBTI ones within them. Among LGBTI activists and feminists, however, divisions exist on issues such as reproductive policies, sex work, and the inclusion of trans women and non-binary persons in emancipatory movements (Ammaturo 2020). On the institutional side, gender equality in the EU has been found to be relatively successful, especially in terms of how ‘gender mainstreaming’ has become a commonplace notion for the impact assessment of gender in virtually every EU policy. The Gender Equality Strategy 2020–2025 continues this approach and builds upon the lessons learned over the past two decades (EU Gender Equality Strategy 2020). In practice, however, the macroeconomic structural conditions of a gendered labor market, required work and family balance, etc. still continue to make women proportionately more disadvantaged in mainstreamed EU policies (Prügl 2009). The same can be said of LGBTI rights, although a decade-long attempt by ILGA to advance ‘equality mainstreaming’ through an official EU LGBTI strategy was only achieved at the end of 2020. It remains to be seen if this strategy is more effective than the previous declaratory ‘list of actions to advance LGBTI equality’ published by the EU’s executive (Commission 2018). Even if the strategy results in more tangible benchmarking and improvements, it may still have ambiguous outcomes, as True (2011) states when critically reflecting on similar gender strategies: As teachers of norms, international institutions are not removed from power politics or the perpetuation of global injustice. Indeed, efforts by these institutions to mainstream and diffuse gender equality may end up entrenching—rather than transforming—dominant gender norms and international power relations. (88) Moreover, aside from activists or governance institutions as agents of change, the larger societal public spheres need to be engaged in an attempt to legitimize specific rights strategies and make those effective. Here, a puzzle emerges that, despite the policy success of gender mainstreaming, “increased acceptance of gender equality as a legitimate though vaguely defined goal co-exists with disinterest in, or hostility to, ‘feminism’” (Cavaghan 2017). The latter, challenging the existing status quo, pursues improvements through a critique of patriarchal structures and advocacy for alternatives. Similarly, equal rights for minorities are generally accepted in the EU, although an increasing opposition to concrete SOGI policies and/ or advocates can be found throughout Europe. The political advocacy by proponents as well as opponents of rights politicizes the issue in European

26  From norm diffusion to norm contestation societies and public spheres, making them more salient and contested (de Wilde 2011). Some have even suggested that, for ultra-conservatives, the term ‘LGBT ideology’ is interchangeably used with the phrase “gender ideology” as a newly emerged target of hostility (Korolczuk 2020, 166). The latter strategic frame combines anti-SOGI positions with resistance to more classical women’s reproductive and mainstreaming rights by opponents of these reforms (Kuhar and Paternotte 2017). Coincidentally, this attempted fusion of sexual and gender rights is also conducted by LGBTI rights activists in attempts to legitimize newer SOGI rights. The cognitive discrepancy between supporting generalized ideas about equality and rejecting specific provisions lies in part in the fuzziness of normative ideas, unless concretized in discourse or policy. Such ambiguity is also rooted in the diverse meanings that one specific notion may carry in specific national contexts, such as for instance, with ‘gender equality’ (Verloo 2007). They illustrate the complexity of such notions within multiple country-specific representations that contain different emphases, meanings, and constraints across Europe. Adding to this national variation are the subtle ways by which gendered rights, LGBTI equality, and ultimately, human security proclamations are connected to discourse, power, and representation (Shepherd 2008). The way norms are socially reproduced, how they are manipulated by governance institutions and other powerful actors, and how they are reified and performed in often symbolic as well as manipulative ways contribute to the ambiguity surrounding their promotion. Applied to the construction of transnational gender equality norms, Zwingel (2016) foregrounds three complicating aspects in norm diffusion analyses. First, international norms, especially in the human rights area, are not firmly set in stone; rather, they are competitive and sometimes, contradictory. Second, a linear adaptation logic cannot be assumed, and instead, both the international and the domestic level engage over these norms based on distinct national patterns. Last, rights norm promotion often creates a simplistic binary of rights-compliant states and rights-denying detractors; yet, in reality, ownership of the issue is much more complex: “when it comes to [women’s] rights, it is more accurate to think of all states as somehow contributing to the scope of the framework, and all of them deviating from this ideal to varying degrees” (17). With gender equality so closely related to LGBTI issues, these conceptual distinctions apply to the latter as well. In a more structural view, Brown (2019) suggests that, in our (neo)liberal1 global system, conservative-religious forces have used the market-based limitations put on governments in the past two decades to carve out antiprogressive, including anti-gender and homophobic policies. These were resituated in the private sphere of household and family, which, together with the private sector, have gained an elevated standing in the contemporary depoliticized era. As such, she reminds us that we should not be surprised that an allegedly tolerant (neo)liberal model of society has had negative unintended consequences for minorities. With the EU justifying

From norm diffusion to norm contestation  27 its rights norms promotion on its market-essentialism, how do SOGI politics as an emancipatory project respond to important questions of material redistribution and inclusive recognition in an attempt to attain justice (Fraser 2013)? This question led to discussions about the relative importance of socio-cultural recognition of LGBTI people and economic redistribution by eminent social theorists such as Fraser and Butler. Both dispute the relative weight of each aspect, but recognize that they are interconnected components. These rights-related tensions inherent in the EU’s neoliberal structure, which produce ‘heterosexist meanings, norms, and constructions of personhood’ (179), apply equally to the EU’s foreign policies. While the recognition of non-conforming SOGI individuals and cultures is present there, a lack of economic justice promotion pervades the EU’s global human rights and development policies. These are built on neoliberal notions of market primacy, with the EU having to connect rights attainment to benefits for its single market in an attempt to legitimize action in this policy field (Thiel 2015). As a result, the economic adjustment and liberalization programs implemented in EU partner countries as part of their association or partnership agreements prioritize heteronormative societal institutions. Such generalized policies without due regard for the specific needs of LGBTI populations, combined with economic liberalization, make it harder for these people to be integrated, thus leading to further marginalization. Given these complexities and idiosyncrasies, what parallels can be drawn from global gender politics for LGBTI politics? Gender equality strategies are not sufficient for LGBTI equality, as the latter entails added sexuality rights, and women represent a larger and more visible population with a longer history of activism. Feminism, however, has laid the groundwork for LGBTI rights activism and has much in common in terms of generalized human rights attainment and the combatting of androcentric chauvinism, with attendant societal and political repercussions. It is unlikely that a strong, legally binding LGBTI policy framework akin to the gender equality one will develop in the EU anytime soon given the early polarization over LGBTI rights. But the advancement of gender equality strategies can provide possible pathways to de-politicize LGBTI rights promotion in Europe. Instead of narrowly focusing on anti-discrimination, hate-crimes, and heteronormative inclusion measures for a specific constituency, it might be necessary to develop a broader disaggregation of objectives that aims at a more comprehensive attainment of inclusion or equality. For instance, the 12-point plan for EU gender equality acknowledges gender as one variable in a number of policy areas ranging from economic development to environment (European Parliament Research Service 2020). This broadened mainstreaming strategy would then result in an impact assessment across all sectors of private and public life. In the disputes between rights particularity and universalism, Crenshaw’s (1994) notion of intersectional, overlapping systems of discrimination based on a person’s characteristics, provides for a theoretical expansion

28  From norm diffusion to norm contestation of narrowly focused identity politics. Just as the recognition that gender, race, and other categories of belonging may negatively impact one another has received wide attention, so can it expand the scope of necessary policy categorization; rather than abandoning this practice altogether as Queer theory would suggest. “Recognizing that identity politics takes place at the site where categories intersect thus seems more fruitful than challenging the possibility of talking about categories at all” (Crenshaw 1994). On the one hand, her approach calls for raising awareness among policy-makers that rights cannot be promoted in isolation from one another. Thus, it opens the door for activists to create broader social-justice-oriented coalitions that can more easily connect transnationally and build more powerful movements. On the other hand, queer theorists like Puar (2005) have criticized the essentializing identity-additive content of intersectionality and suggest a move toward – however vaguely defined – ‘assemblages’: As opposed to an inter-sectional model of identity, which presumes components—race, class, gender, sexuality, nation, age, religion—are separable analytics and can be thus disassembled, an assemblage is more attuned to interwoven forces that merge and dissipate time, space, and body against linearity, coherency, and permanency. (127) Without going into too much detail about the theoretical distinctions between the two different ways to understanding SOGI politics, this conceptual–theoretical dispute highlights a key concern in rights promotion issues. It posits that an identity-driven classification of distinct ‘LGBTI’ rights may not be the most effective or legitimate option. In addition, it is important to consider Puar’s implicit critique about the Western origin and spread of intersectionality to describe non-Western experiences (Carastathis 2016), which closely mirrors the diffusion and appropriation of ‘LGBTI’ rights worldwide. This is also reflected in my survey of activists, who connect human, gender and LGBTI rights strongly with each other. At the same time, the majority rejects a broader intersectional promotion that subsumes LGBTI rights under a less explicit human rights notion. Referring to this problematic tension, one activist stated: “I definitely think an intersectional approach is both needed and important, but I believe we still have some way to go until we can stop putting so much emphasis on LGBTI rights” (I-9). Cognitive shifts from human rights to LGBTI rights to human rights of LGBTI persons The literature on international human rights norms is vast. The references here, therefore, are not exhaustive but represent some of the most essential theoretical reflections. They trace the framing of the concept of human rights to LGBTI rights as ‘reserved domain’ for a specific segment of the population to a more recent acknowledgment of the inherent applicability of human rights for LGBTI individuals. Before connecting to the human

From norm diffusion to norm contestation  29 rights frame, early gay and lesbian activists pronounced gay liberation as a goal. Yet, especially in intergovernmental advocacy, the notion of sexual rights as human rights seems better apt to link to basic rights spelled out in the UDHR and make them more intelligible for sexual minorities in the Global South (Mertus 2009). These changes not only characterize rhetorical moves that aid in political advocacy, but they also signify deeper ontological perspectives on the universality and indivisibility of a broad catalog of human rights available to every individual, independent of their SOGI status. As a counterpoint, the question of cultural relativism or contextualism, that is, the distinctiveness of the domestic application of human rights in tension with their universal formulation, looms large. With the rise of CSOs following the end of the Cold War and the advent of internet and communication technologies, (non)state activists have been able to widely diffuse the notion of universal human rights. This has led to the generalized idea that all civic, political, economic, and cultural rights being applicable in a similar way across the globe, with resulting opposition to perceived Western rights-imperialism. As scholar-activist Freedman (2014) concludes in her empirical research on human rights advocacy at the UN, the universality of human rights needs to be considered in respective cultural, religious, and historical contexts. Postmodern scholars such as Butler or Zizek have similarly argued that universality needs to be articulated within concrete cultural realms (Lloyd 2007, 149). Basic rights (to life, to freedom, to privacy, etc.), however, should be equally available to every individual globally. In an attempt to ‘brand’ human rights for agenda setting and framing in international politics, (non)state advocates often simultaneously fix rights notions while making them flexible or empty enough to fit the purpose. Moreover, many rights advocates subscribe to an internationalized liberal human rights paradigm that they would like to see implemented globally. As human rights rest inalienably inherent in each person, the call for universality represents a claim for a global equity of rights based on an individual’s dignity. Once this ideal type notion is applied in domestic contexts, questions of strategy, ownership, and a hierarchy of rights, needs, and obligations emerge that, at times, sit uncomfortably with the idealistic rights norms that are to be attained. For instance, it becomes problematic when European feminists aim to ‘liberate’ Muslim women from their veils in Europe and beyond, as it simultaneously runs the risk of limiting these women’s self-determination and religious- cultural rights. Human Rights are influenced by political movements and contested based on political ideologies – which make them ideological constructs as well. Initially reserved only for the white bourgeoisie in the 19th century, in the 20th century, they became part of the entrenched ideological warfare between Western liberalism and socialist collectivism, used as a rallying cry for self-determination with all its attendant issues. They therefore ought to be examined with more care by scholars, activists, and politicians

30  From norm diffusion to norm contestation attentive to their performative role. The UN’s UDHR represents the first ‘internationalization’ of human rights, in contrast to previous state-bound definitions that evolved alongside the modern state system in the 19th century (Weitz 2019). Together with the UDHR and the corresponding constitutionalization of human rights in the Council of Europe and in the EU, human rights had become a collective identity marker for post-war Europe. The end of the Cold War and the initial democratic transitions throughout the end of the 20th century have led to an increased political and scholarly emphasis on the conceptualization of human rights. In regard to politics, the indivisibility of those rights was already compromised during the Cold War when two different covenants, aimed at translating the declaration into binding policy provisions, were attached to the UDHR; one on political and civil rights and one on economic, social, and cultural rights. These were signed and contested by different geopolitical blocs, indicating a Western emphasis on individual-based rights and a socialist Eastern emphasis on collectivist-based ones in the latter covenant (Özler 2018). Not only did this bifurcation violate the indivisibility and interdependency of human rights, it also paralleled and possibly paved the way for an increasing segmentation of rights in the economic, political, and cultural sectors. This separation evolved similar to the way SOGI issues have increasingly become parsed out into LGB (who apparently ‘own sexuality’) and T (who primarily ‘own gender’) matters; or how social justice issues have split into various sub-foci from racial to economic to environmental justice. Such differentiations remain limiting on both a conceptual as well as a political level. Likewise, the theorization of human rights as a universal concept comes with obvious problems, as aside from the cultural relativist argument even many European human rights standards have been compromised in practice, based on security concerns or populist-authoritarian discourses. Such incoherence becomes apparent in the EU’s management of incoming refugees, for instance. Moreover, the rise of geopolitical actors such as China and Russia, who are less stringent in their interpretation of individualized human rights, has led to a weaker standing of rights claims in the international realm. In the process, various rights-subsets are exposed to being played out strategically against each other, especially individual versus collective rights, modern versus traditional cultural rights, or women’s versus SOGI rights. Scholars such as Sikkink (2017), however, maintain that despite what appears to be a regressive human rights environment today, international rights instruments and advocates have fared well if one considers a longer view and looks in detail at the instances where rights promotion has succeeded, rather than failed. She takes issue with Moyn’s (2014) characterization of the current human rights regime as ‘Western’, stating that historically, Global South countries have contributed significantly to it as well (Sikkink 2017). She also rebuts Hopgood’s (2013) notion that the multi-polar system emergence, coupled with the decline of the (neo)liberal West, will result in

From norm diffusion to norm contestation  31 a decreased attention to human rights. In reality, both tendencies appear simultaneously, with an incremental Western success of promoting rights more widely and resistance in some states. The contemporary situation is too complex: while the notion of individual rights has been set in motion and translated into popular expectations of self-expression, current autocrats from Russia to Vietnam to Nigeria seem to be able to promote alternative models that emphasize economic and communitarian well-being over individual freedoms. LGBTI rights concern a small but vocal segment of the population depending on internationalized rights with relatively weak legal bases, and the individualized notion attached to those rights makes it harder to become accepted by governments and societies that may not pursue democratic-liberal ideals. As the current international human rights regime is viewed as too neoliberal and individualistic, communist and autocratic governments have used their economic policies to improve the welfare of their citizens in order to strengthen the national community, with little tolerance for critical identity politics. While human rights are not exclusively ‘Western’, as the specific UN emphases on universality and a broader international acceptance in nonWestern settings have shown, the question of influence over normative issues remains. More recently, scholars connected to IR’s periphery have begun to question the way in which LGBTI politics, originating in ‘the West’ or ‘Global North’, have produced a heteronormative model of inclusion and equality (Puar 2007; Rahman 2014). By emphasizing assimilatory inclusion into societies through the pursuit of marriage or children, such politics have also contributed to an individualized perspective on rights attainment. This depoliticized perspective, advanced in almost universal neoliberal settings, has also reduced the solidaric power of collective activism. As a result, a collective understanding, expressed through the pluralistic ‘LGBTI’ acronym, has morphed to become ‘human rights for LGBTI individuals’. The latter necessitates an assumed reliance on liberal state actors in the postwar period, so that rights attainment becomes dependent on powerful state promoters.

Norm research in IR and European Politics: functions and processes Over the past two decades, an expansive field of norm scholarship has developed in IR and European Politics. In order to establish a solid foundation for the analysis of LGBTI rights norms promoted through EU policies in the following chapters, a short overview of the main distinctions, with regards to definitions and functions of norms (constitutive, prescriptive, or regulatory) as well as processes of diffusion or contestation, is required. Despite the relatively recent emergence of norms as a constructivist concept (Kratochwil 1989; Klotz 1995) and the peripheral treatment of those in comparison to questions of power or resources, the research on norm

32  From norm diffusion to norm contestation diffusion and related concepts of norm change, contestation, and polarization has received increased attention. In order to understand the complexity surrounding norms, it is important to highlight a few fundamental attributes below that apply to the promotion of LGBTI norms, just as they apply to most other norms. On a most basic level, as previously stated, norms are standards of behavior, but they have also been defined in reference to the identity of political agents. From a foreign policy perspective, international norms serve as constraints on foreign policy making, while simultaneously being the result of foreign policies (Shannon 2017). The latter aspect hones in on the ambivalent role norms play in IR, being regulative as well as constitutive. After Keck and Sikkink’s often-quoted transnational norm diffusion model highlighting a norm spiral and a boomerang effect to convince other states (1998), the field has reconsidered initial ideas of how human rights norms travel to include increasingly nuanced assessments. Yet even more differentiated conceptualizations of the human rights spiral such as the sequenced multilevel one developed by Risse et  al. (2013) presupposes a complex staging of three types of socialization (instrumental adaptation, argumentation, and habitualization) in five different stages (ranging from initial repression to rule-consistent behavior) on three different levels (crossing from domestic society into state government and to the international society). While this allows us to further differentiate the scope conditions necessary to promote human rights, it is also evidence of the highly complex and contingent interplay of various actors on different levels. As a result, “it is not clear that a general theory of human rights change is possible” (276). State-centric analyses pronounce a ‘state-norm entrepreneurship’ (Bonna Nogueira 2017) aiming to advance LGBTI human rights at the EU level and in bilateral negotiations with other countries. Among EU member states, the Nordic countries are often trendsetters and stewards of SOGI-based norms in Europe. The setting of common procedural or regulative norms, just like the establishment of common policies, allows governmental actors to create procedures and policies that advance European integration (Carbone 2007). The less the specific policy fields are defined, the larger the opportunity structure to advance preferred norms. In a field such as human rights, and more so in the recent activity area of SOGI rights, an opportunity exists for states to become prescriptive norm-setters – for instance, for the Nordic member states in the EU and often in the UN as well. One of the ways in which this process has been conceptualized comes from international legal theory. Goodman and Jinks (2013) posit that, next to the established strategies aimed at changing state behavior regarding human rights, such as material inducement or persuasion, the underappreciated notion of acculturation should be considered part of the rights diffusion toolbox. Acculturation, according to their definition, encompasses “mimicry, identification and status maximization” (4) generated by a mix of internal as well as external pressures to assimilate to other states that are viewed as

From norm diffusion to norm contestation  33 models. In contrast to persuasion, which focuses on the norm or internalization that focuses only on the target state, acculturation concentrates on the relationship between the actors involved (26). This theory goes beyond the uni-directional strategies of states incentivizing or persuading other governments. It still, however, assumes a valid norm to be in place and underexplains norm negotiation processes. Such considerations help refine the processes by which norms are diffused, though it is evident that even within the EU acculturation of all member states has yet to be achieved before similar strategies can be used externally. Thus, acculturation highlights the complexity and contingency by which norms are promoted and taken up by others as well as the cultural, social, and cognitive contexts in which norm negotiation and adoption in governance settings occurs. In the case of the EU, the promotion of LGBTI norms can be characterized as the ambition to exert ‘soft power’. Soft power ‘[aims at] getting others to want the outcomes that you want [and] co-opts people rather than coerces them’ (Nye 2004, 5). To pursue soft power politics requires ‘intangible assets’ such as ‘attractive personality, culture, political values and institutions, and politics that are seen as legitimate or having moral authority’ (ibid., 6). One can see how, in terms of being viewed as an attractive model of regional integration following a string of crises or as lacking in moral authority in inconsistently advancing progressive values that not even all member states subscribe to, this kind of soft power has eroded as strategic resource for the EU. With regards to LGBTI rights, the EU’s soft power agenda for norms tends to elicit anti-preneurial counteractions, marked by state and societal homophobia and the manipulated instrumentalization and securitization of these rights. In fact, some have noted an expressed attempt to redefine the use of soft power by autocrats, exemplified by Russia’s collaboration with EU member state Hungary or candidate state Serbia to broaden the impact of the global anti-LGBTI movement (Bonny 2019). It is important to remember that norms are often connected to other mechanisms of international cooperation such as regimes, principles, and decision-making procedures. As such, they are not fixed once established, but tend to be relatively fluid and malleable in character, in contrast to legal–constitutional provisions. In order to be effective, they need to be recognized by the majority of stakeholders in governance processes and internalized. It is through social learning informed by discourse and framing that recognition of an issue by decision-makers occurs. My review of past EU annual human rights reports evidences an almost ten-fold increase in the visibility of LGBTI rights there from 23 mentions in 2009 to 199 in 2018. Within that decade, the centrality of SOGI issues has increased significantly after the EU’s development of foreign policy guidelines in 2013, with a heavy focus on African and Middle Eastern countries in the thematic and countryreport sections. As these are used by the EU institutions to assess their relations with third countries and to construct country-level strategies in the EU’s diplomatic service, the discursive emphasis of LGBTI rights reflects

34  From norm diffusion to norm contestation not only the factual existence of such issues – which are unlikely to have increased ten-fold over the past decade – but also mirrors the extent to which they have been recognized as salient policy issues for EU policy-makers. The reception of norms is not just institutionally determined, but norms carry an innate prescriptive and regulative quality. They are conceived of as “standards of conduct intended to regulate behavior” (Sandholtz 2017, 2), a quality that is particularly pronounced in the case of pro-LGBTI norms and homophobic counter-norms. With regards to the latter, increasing norm resistance (Sandholtz 2017) has been noted as well as norm polarization over LGBTI rights promotion (Altman and Symons 2016). Referring to international norm change and contestation, Wiener (2018) reminds us that it is important to keep in mind whose practices count, as it links norm diffusion and contestation to the legitimacy of not only the perceived norm content, but also to the normative agent. Since norms arise from national communities, they are prone to change and contestation in the international arena. This negotiated, or sometimes contentious, exchange in turn produces modifications or new/counter-norms. This makes norms inherently contestable and norm contestation a re-constitutive, generative process rather than an unwelcomed side effect of non-compliance. In the process of norm negotiation, public arguments and exchanges open the opportunity for a more inclusive refashioning and positioning, that is, localization, of norms (Benhabib 2004). In general accounts, the domestic contestation of rights is often termed a backlash to progressive and supposedly universal norms. This insight into the relationship between norms and contestation is important for this work as it avoids the simplistic assumptions that norms are ‘by nature’ positive or should simply be diffused. Such naïve positions echo liberal internationalist thinking that dominates much of the post-cold war ‘Western’ foreign relations, unaware of power differentials and a “will to judge others” (Steele 2016, 138). The queer critique of the EU’s advancement of LGBTI rights rests not only on the normative ‘standard’ setting through a powerful actor but also concerns the implicit ‘othering’ based on European ideals. Last, in terms of how these conflictive norm promotion processes have an international effect, Hackenesch et  al. (2021) have theorized a process of ‘outside-in’ politicization through EU foreign relations. This concerns a process whereby EU policies toward a specific country are politicized at the national level of third countries. Politicization includes an increase in the salience of LGBTI rights, with a resulting polarization of opinions and an expansion of actors involved, such as civil society, governments, and the EU. Politicization as an agenda-setting process eventually leads to norm contestation of the regulatory norm that is advanced through external actors. Norm contestation can occur on grounds of the normative LGBTI content as well as through the conditional imposition of rights norms in beneficiary countries (Saltnes and Thiel 2021). In the process, the norm, as well as the domestic human rights defenders, may end up as securitized targets of governments in their attempt to control the politicization dynamics.

From norm diffusion to norm contestation  35

‘LGBTI rights’ promotion caught between ‘Normative Power Europe’ and the ‘Gay International’ The initial assertion in the post-Cold War era that the EU is, or should be, a normatively motivated bloc has not only become one of the most cited and heavily discussed theoretical concepts, but is also reflected in the way EU institutions justify themselves. The core norms that Manners (2002) highlighted as constitutive include peace, liberty, democracy, rule of law, and human rights and are often implicitly or explicitly included in exchanges and agreements with external partners. Given the absence of significant military power and the volatility of its economic strength, the EU is keen to emphasize constitutive as well as prescriptive norms such as the maintenance of human rights in its internal and external policies to legitimize itself. Here, the EU institutions have an important coordination function for the member states. They thus can be more expressly normative than the member governments who are exposed to accountability pressures from their constituencies. In that sense, Normative Power Europe (NPE) is constituted of both the somewhat autonomous common institutions (such as the European Commission or the Parliament), which in a regular manner vocally pronounce their normative ideals and expectations when advocating for climate protection or human rights, and the member governments, which may be more or less normatively motivated. Despite its mixed reception, NPE has become a dominant concept of EU foreign policy. In its singularity, it eschews a deeper analysis of the political power struggles in the determination of which norms to highlight – “the politics of normative power” (Jenichen 2020, 4). In addition, the problematic linking of norms and power, the blending out of coercive and negative effects of the EU’s strategic foreign policy, and the EU’s self-legitimizing construction of what should be considered ‘normal’ (Merlingen 2007) question the NPE concept. Moreover, Diez (2013) critiques the way in which NPE allows the EU to position itself as superior toward other regions not only theoretically but also in policy practice. All of these negative implications of the EU’s adherence to its idealized self-image emerge in subtle ways when pronouncing resolutions or policies that invoke its founding ideals and aim to construct relations with other, often dependent, countries and regions. Scholars evaluating the EU as international norm promoter have thus come to varying conclusions. While some (Jurje and Lavenex 2014) show that the EU has in specific cases been able to export its ideational ambition, others have reached more critical conclusions. The latter group makes such promotion dependent on the degree of asymmetry in bilateral relations, the domestic costs involved in policy changes, and the fit between normative, economic, and political interests (Sicurelli 2017). Drawing on a Foucaultian reading of NPE, Merlingen focuses on the fact that norms are never neutral and not always beneficial. Rather, they tend to imprint specific values and ideologies and privilege certain knowledge (holders) over others, especially

36  From norm diffusion to norm contestation when linked to administrative or technocratic power (441–442). Applied to the promotion of LGBTI rights, these normative ideas are cited as constitutive part of Europe’s political identity (Ayoub and Paternotte 2014). Yet, they are also often manipulated to create Eurocentric borders, political tropes, and ‘othering’ binaries (Kulpa and Mizielinska 2011), for instance, when highlighting symbolic politics that are disconnected from local customs and traditions, such as pride marches. By self-referencing the EU as NPE, analysts and policy-makers engage in a powerful legitimizing discourse that produces the above-mentioned unintended consequences. They may also more subtly prescribe an ideal, usually to less powerful counterparts, that the EU itself cannot implement or maintain, but that then manifests as a sexual ‘standard of civilization’ (Delatolla 2020) for others. Critiquing this type of regulatory LGBTI norms, Massad (2008) has become one of the most visible opponents of the West’s ‘gay liberation’ approach. Following in the footsteps of post-colonial feminism, his assessment “shows how this discourse assumes pre-discursively that homosexuals, gays, and lesbians are a universal category that exists everywhere in the world” (163). He then proceeds to dispute the orientalizing tendencies of Western analysts and policy-makers, which are allegedly entangled in a modernizing project creating Western sexual, social, and even geopolitical binaries. Yet, his theorizing of the Western-based ‘Gay International’, which leads Muslims to become persecuted in their countries through the adoption of visible LGBTI identities, is also problematic. It indirectly locates the issue of homophobia in the culturally conservative segments of Middle Eastern countries and views secular middle-class queer reformists there simplistically as appropriating a foreign vocabulary and strategy. Moreover, it neglects the colonial legacies in which those struggles are embedded: “There is a double standard at the heart of Massad’s argument, whereby individuals and communities that embrace religious or political identities—equally colonial legacies—are deemed legitimate political agents, whereas those who embrace sexual identities are condemned as ‘Western’” (Dhawan 2016, 58). Rather, Western influence is hybridized through local appropriation and re-articulation in specific ways. In this characterization, Europe’s international LGBTI rights promotion oversimplifies norm diffusion dynamics and contributes to simplistic binaries between Europe and Global South countries. It also presupposes artificial identity-distinctions based on imported sexual rights language. While there is no doubt that an appropriation of Western vocabulary and identities through local activists occurs across the globe, the re-articulation of those in specific domestic settings is as diverse as the global LGBTI community itself (Martel 2018). In a similar vein, Puar (2007) links the U.S.’ and Europe’s emergence of homonationalism – a nationalistic and imperialist idea of LGBTI inclusion in governments and movements in Global North countries while othering Global South ones – to the creation of racialized security threats. While she

From norm diffusion to norm contestation  37 focuses in particular on the U.S.’ sexual exceptionalism, the notions of Western regulatory-prescriptive queerness and the privileging of Caucasians in neoliberal markets can be applied to the European case as well. To begin with, the EU has developed a similar sexual and secular exceptionalism, built upon its globally prominent promotion of LGBTI rights adopted by most European CSOs. Second, this EU-supported (neo)liberalism advances a liberal-prescriptive, heteronormatively oriented way of ‘being LGBTI’ that allows for the emergence of imagined others and even a gay-rights right wing (such as in the Netherlands or Sweden). Last, the incorporation of productive and consumption-based class and racial elites maintains the EU’s single market, threatened by internal migrant-others, foreign competitors, and overall demographic decline. Applying Puar’s U.S.-centered analysis to Europe, one could similarly reason that the EU “maintains its homophobic and xenophobic stances while capitalizing on its untarnished image of inclusion, diversity and tolerance” (26). As an expression of such pluralistic liberalism, performative acts such as ‘coming out’ or pride marches and festivals create a visibility that invites publicity for LGBTI identities and a resulting tension about the degree of visibly required ‘European-ness’. In many non-European settings, anonymity is the traditional but also marginal space where many LGBTI individuals can live their truth. A less visible and fixed identity politics often corresponds better to pre-colonial SOGI conceptualizations present there. Through the noticeable highlighting of Western rights politics, domestic LGBTI individuals and groups are more easily exposed to repression and, at times, victims of a pre-emptive move by governments to quell any dissent. Examples abound, such as the Russian government’s public disapproval of EU gay-rights policies, the jailing of gay-rights activists in advance of the Eurovision contest in Armenia or in Cuba and the Philippines, when those governments hosted EU visitors. In less repressive settings, such as during gay pride marches in CEE, religious and far-right nationalist counter-protesters often outnumbers the pride marchers, thus contributing to an ambivalent high-profile event with questionable outcomes in terms of expected tolerance. In the process, an unnecessary binary is created and reinforced that then leads to detrimental consequences. By reiterating the necessity of expressed ‘LGBTI rights’, in many official policy documents, the EU also contributes to a reification of this diverse SOGI label and the binary between heterosexuals and others. Illustrating this performative visibility, more funds seem to be available for publicity-generating programming of Global South LGBTI organizations than for less obvious long-term initiatives that may actually improve the socio-economic standing of its members. Outside of Europe, the strong emphasis that the EU places on LGBTI rights (visibility) is often situated within a geopolitical framework. In one of the EU’s most crucial cases of engagement, Ukraine, Shevtsova (2020) illustrates how the EU’s focus on LGBTI rights is domestically articulated

38  From norm diffusion to norm contestation as a geopolitical trade-off with respect to Russia. Signifying the Ukrainian government’s inclination to choose ‘the lesser evil’, she quotes the leader of then-President Poroshenko’s party: “It is better to have a gay parade on Khreshchatyk [the main street of Kyiv] than Russian tanks in the center of the capital of Ukraine” (1). She highlights the relevance of domestic actors which have to position themselves in relation to these two influencing powers. The EU through its conditionality, including antidiscrimination policies in exchange for an association agreement with the bloc, may indirectly contribute to increased homophobia in Ukraine. The Ukraine, just as the current Balkan accession candidate states, is evidence of the way in which governments instrumentalize the EU’s push for their domestic purposes. In the process, they securitize LGBTI issues and actors and, more often than not, make it more difficult for pro-EU forces to speak up so as to not be perceived as unduly influenced. In these two cases as well as in many others in CEE, Russia becomes a central actor. With Russia’s return to its personalistic leadership cult under President Putin, its narrative of the West has morphed from an initial post-Soviet hopeful embrace of Europe to a more nationalist rejection of ‘Gayrope’. In this instance, the EU is viewed as an overly liberal geopolitical actor that is in decline itself and should not be emulated (Foxall 2019). The antipathy found in CEE states for Russia and its authoritarian culture, however, does not seem to extend to a rejection of Russia’s homophobia – rather, this kind of (LGBTI) exclusionary nationalist narrative is similarly embraced (see Chapter 4). Europe’s engagement with other states can therefore become compromised as certain preferential foreign policies, such as market access or political aid, are often conditioned upon the implementation of Western-style LGBTI rights under the so-called ‘human rights umbrella’ (a broader agenda inclusive of a number of civil, political, social, and group rights). These may not always be appropriate given different cultural and political contexts because they reinforce the impression of a dominant, interventionist LGBTI rights promotion. It also provides for the development of supposedly counter-hegemonic policies in recipient countries that, in reality, mask authoritarian governance advanced as anti-Western populism. These tensions are apparent in candidate states that need to adhere to the EU’s rights prescriptions (Chapter 4), but are also visible in the linking of LGBTI rights promotion to other policy areas such as good governance and economic development in development policies (see Chapter 5). The attempt to connect EU LGBTI rights norms to broader UN human rights may reduce its Eurocentric orientation, but still politicizes them by constructing them as liberal-universal (see Chapter 6). In order to validate my analysis of these norm conflicts in the next chapters, I rely on document analysis, 12 interviews with EU-based activists and policy-makers, a small survey of international LGBTI rights activists, and participant observation at the global LGBTI activist ‘Outsummit’.

From norm diffusion to norm contestation

39

Conclusion If the EU is to become a coercive human rights promoter, rather than relying on and incentivizing the voluntary participation of states in promoting LGBTI rights, then it will lose precisely the kind of aspirationalnormative power that emerges from a principled, rather than a coercive, stance. Given the EU’s commendable support for civil society in third countries, a stronger emphasis on conditionality and enforceability imperils the work of those actors and makes them targets as supposed ‘foreign agents’. In democratizing countries where the government made the transition from oppressor to enabler of human rights, a residual resistance to outside actors serving as provider of human rights remains. So what should be done? Is, as Hafner-Burton (2013) highlights, an emphasis on better compliance with core human rights measures, advanced by vanguard ‘steward’ states, more effective than aiming to expand the list of rights and treaty signatories? Despite the relevance of foundational, constitutive norms laid out in the EU’s founding treaties, the ongoing process of joint policy development generates norms that can be framed as regulative by EU institutions, member states, and advocacy groups. A recognition of the linkage between constitutive and regulative norms, however, is essential so that values important for the EU are understood to not just be regulatory in an external context. This process is significant because, in order for human rights norms to be promoted, they need to be translated in actionable, coherent strategies. Chapter 3 highlights some of these key processes.

Note 1 I use (neo)liberal to indicate that the term implies both, a liberal economic and governance aspect, whereas neoliberal solely applies to economic relations.

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From norm diffusion to norm contestation  43 Towns, Anne. 2017. “Gender, Power and International Society”, in: Dunne, Tim and Christian Reus-Smit, eds. The Globalization of International Society. London: Oxford University Press, 380–398. Thiel, Markus. 2015. “Transversal and Particularistic Politics in the EU’s Antidiscrimination Policy: LGBTI politics under neoliberalism”, in: Picq, Manuela and Markus Thiel, eds. Sexualities in World Politics. New York: Routledge, 75–91. True, Jackie. 2011. “Feminist Problems with International Norms: Gender Mainstreaming in Global Governance”, in: Tickner, Ann and Laura Sjoberg, eds. Feminism and International Relations. New York: Routledge, 73–97. Van der Vleuten, Anna. 2012. “Gendering the Institutions and Actors of the EU”, in: Abels, Gabriele and Joyce M. Mush-aben, eds. Gendering the European Union. New Approaches to Old Democratic Deficits. Basingstoke and New York: Palgrave Macmillan, 41–62. Verloo, Mieke. 2007. Multiple Meanings of Gender Equality: A Critical Frame Analysis of Gender Policies in Europe. Budapest: Central European University Press. Weitz, Eric. 2019. A World Divided: The Global Struggle for Human Rights in the Age of Nation-States. Princeton, NJ: Princeton University Press. Wiener, Antje. 2018. Contestation and Constitution of Norms in Global International Relations. Cambridge: Cambridge University Press. Zwingel, Susanne. 2016. Translating International Gender Norms. New York: Palgrave.

3

LGBTI rights promotion within the EU Crafting consensual norms where few exist?

LGBT is not people, but an ideology Jacek Żalek (conservative ‘Agreement’ party member, Poland, June 2020)

Introduction The emblematic quote above, directed against apparent oppressive ideologies, formed a core campaign message of the governing conservative parties in Poland. Similar claims by other governmental leaders were repeatedly made during the 2020 presidential election campaign there. In addition, supportive Catholic Church officials preached against the ‘rainbow plague’, using highly evocative vocabulary during the Covid19 pandemic. Together, they construed a politically expedient binary of a pure nation posited against alleged EU-ropean decadence. A similar EU-directed externalization of culpability was used in the run-up to the previous elections in 2015, when the same conservative actors scared Polish citizens with an image of impending EU-enforced refugee waves (Szulc 2019), illustrating an instrumental politicization of minorities for political gains. Such narratives not only degrade the dignity of LGBTI individuals while simultaneously diminishing the past communist oppression by comparing it to EU influence, but they also make it seem as if human rights are an ideological import from Western Europe. If one of the most important EU governments is able to publicly advance such discriminatory discourse to mobilize their political base for domestic electoral gains, it raises the question to what extent the EU is able to negotiate a norm-based consensus on human rights standards for LGBTI individuals within the region and hold member states accountable to it. It also relativizes a generalized EU ‘rights exceptionalism’ advanced through NPE (see Chapter 2), as there are substantial number of homophobe forces emerging across Europe, as detailed below. In elevating LGBTI rights to a threat comparable to communism as claimed by President Duda, the government is using moral panics to mobilize voters and preemptively distract from a focus on other pertinent issues, such as the economic downturn, Poland’s rising rate of Covid infections, and of corruption accusations against the government (Politico EU 2020). DOI: 10.4324/9781003054627-3

LGBTI rights promotion within the EU  45 Such counter-normative narratives create a nationalist homophobe legitimization strategy through the othering of domestic LGBTI individuals and alleged corrupt EU elites which supposedly push the issue onto the Polish nation. In 2019, about 100 municipalities and districts in the SouthEastern part of Poland declared themselves ‘LGBT-free’, in collaboration with the Catholic-fundamentalist organization Ordo Iuris. The governmentallied weekly Gazeta Polska even distributed ‘LGBT-free’ stickers, further inflaming the polarized treatment of European LGBTI rights issues. When reprimanded by opposition activists and parties, the magazine’s editor responded that he wanted to prove ‘LGBT as a totalitarian ideology’ (Reuters 2019). The distribution of the stickers was eventually struck down by a Polish court noting constitutional anti-discrimination provisions. It is noteworthy that this provocation by government-supported actors occurs on the backdrop of a slow but steady increase in tolerance toward LGBTI individuals domestically from 42% in 2013 to 47% in 2020 (Pew Research 2020). Moreover, the fact that LGBT-free zones were limited to the South-Eastern part bordering Ukraine and Belorussia adds a geopolitical element to the case, whereby these areas become normatively othered regions that incidentally are among the poorest within Poland. When this issue appeared on the radar of the EU and European CSOs, calls to put pressure on the Polish government were voiced, and selected West European towns initiated bottom-up pressure to suspend their city partnerships with Polish towns that declared themselves ‘LGBT-free’. These tensions increased when the EU Equality Commissioner refused town-winning EU funds for selected homophobe Polish cities, resulting in the Polish government announcing they would pay even higher subsidies in compensation to the affected municipalities. Condemnation by members of the European Parliament (EP) or a threat to cut pandemic-recovery for these regions by the European Commission, as occurred in the aftermath, will likely be perceived as continuation of an interventionist approach and not contribute to a substantial improvement. Rather, a critical reflection on what allowed such flagrant violations of joint European human rights norms to occur is needed, which the following sections are concerned with. As the previous chapter has shown, the EU aspires to be viewed as a normative power that persuades others to follow its practices despite the potential problems of this approach. In its updated neo-normative rendering, this perspective perceives of the EU’s normative power as a result of the interaction of its goals, means, and justifications. In recent years, the Union has stepped up to take a global stance on promoting human rights to approximate EU laws requiring internal human rights standards in its member states. This extends to respecting LGBTI human rights, which the EU has made a priority for all countries who want to join, establish association or trade, or receive EU aid (European Parliament 2020). Yet, the EU’s internal LGBTI rights policy is less firmly established and recognized by its own member states than is externally portrayed. Moreover, its international

46  LGBTI rights promotion within the EU promotion of norms and policies has led to disputes in recent years, for example, in a number of candidate member states (such as Turkey or Serbia), in the EU’s neighborhood (Ukraine, Russia, Egypt), or in countries that rely on European development funds (such as in many of the 79 African, Caribbean, and Pacific states). This pushback makes it harder for the Union to exert influence, particularly if it aims to be seen as a normative model for others based on the absence of military might and the EU’s self-image as a global actor promoting human rights, democracy, and the rule of law. This chapter thus examines the apparent normative clash ensuing between EU member states when trying to develop a common position on the promotion of LGBTI rights as liberal human rights. It investigates how relevant European actors deploy rights language and discourse and thereby institutionalize a normative and discursive rights framework (Thoreson 2014). At the same time, the ensuing pushback by culturally and politically conservative states, which contest the bloc’s strategy with their own normative nationalist and cultural relativist counter-narrative, is detailed. Hence this chapter analyzes the degree to which norm negotiations may be possible when attempting to construct LGBTI rights policy in the EU. It highlights the often-perceived regulatory character of norms in this process and links Europe’s inconsistency to an ambiguous and deficient EU-level ‘constitutive’ norm (Finnemore and Sikkink 1996) of LGBTI rights promotion. In doing so, the overall question in how far the bloc is a ‘normative’ agenda-setting power on the world stage is of lesser significance here as this chapter concentrates on the norm disparities present in the EU’s construction of those. The previously explored definitions of norms center around a commonly assumed standard of appropriate behavior for actors with a given identity. They indicate a sociologic-institutionalist ‘logic of appropriateness’ based on ideational motivations by political actors that construct their role definitions embedded in socio-cultural environments. In addition, other scholars have highlighted the role of social learning, persuasion, and adaptation as mechanisms of Europeanization (Sedelmeier and Schimmelfennig 2005), which arguably is part of the larger socialization process in which the EU’s LGBTI norm diffusion occurs. These processes constitute important mechanisms as the EU, throughout its history, has regularly integrated and socialized new member states. Yet, the popular but also heavily debated constructivist concept of norm diffusion glosses over the limited consensus that exists in the EU with regard to many of its rights policies and, accordingly, the role it should assume in international affairs. This is particularly evident in such a normatively contested and geopolitically intertwined area as sexual rights and equality (ranging from basic SOGI non-discrimination provisions to positive rights of partnership recognition and childcare). Moreover, queer theory highlights that such norms are always performatively as well as contextually contingent, negotiated and contested (Butler 1990). Thus, each EU state perceives differently of any

LGBTI rights promotion within the EU  47 given set of norms, so that simplistic norm diffusion models often neglect the complexity involved (Wiener 2015). As a result, norm resistance is increasingly noted as a reaction to unilaterally ‘imposed’ norms (Wilkinson and Langlois 2014). The EUrocentricity of this policy, linking advances in LGBTI rights to European (post)modernity, is not only responsible for creating a binary discourse judging less progressive states or counterparts as ‘undeveloped’ or ‘undevelopable’ (Weber 2016). It also leads resistant actors within and outside the EU to respond to this assertive vision with their own conservative message, as we can see in a number of states such as Poland, Hungary, or even accession candidates such as Turkey. Aside from Poland (in 42nd place out of 49 European countries), Hungary is another EU member state that performs insufficiently in ILGA-Europe’s LGBTI rights ranking (27th place, see www.rainbow-europe.org) and has similarly moved toward neo-traditional, semi-authoritarian governance over the past few years. Twisting the EU’s normative supremacy narrative around, Hungary’s Prime Minister Orban’s created an ‘us-vs-them’ narrative of enlightened Christianity to distract from his increasingly authoritarian regime, indicative in his statement that “Central European nations should unite to preserve their Christian roots as western Europe experiments with same-sex families, immigration and atheism” (Reuters 2020). In the process of aligning a specifically conservative view of Catholicism with his government’s natal nationalism, he politically exploits norms and manipulatively flattens historical and religious contexts such as Hungary’s historical significance in fighting the Ottoman Empire’s advances into Europe. Not only have samesex marriages been constitutionally banned under Orban’s rule and gender studies all but banned, but in 2020, the government tried as the first in Europe to prohibit legal gender-recognition for trans* individuals. This ban was challenged by a symbolically significant Iranian Muslim refugee at the European Court of Human Rights, which struck down the law. Furthermore, pressure is building up to expel his party from the EP’s conservative group, especially after his main homophobe interlocutor, MEP József Szájer, was caught with drugs in a gay orgy in Brussels in 2020 and had to resign from his office. Needless to say that this also led to Hungarians questioning the government’s norm duplicity. Coincidentally, Orban’s close ally Putin is attempting to pass similar laws in Russia, which highlights the geopolitical connectedness of anti-SOGI politics in Europe (Köttig et al. 2017). Hence, in the following section, I theorize the norm disparities among EU member states to evidence the lack of a consensus over LGBTI rights and then analyze to what extent attempts to craft a joint position through interactive exchanges on the EU level of governance have been effective. Given that norm diffusion is primarily theorized as a process of social learning and persuasion rather than a power-based policy transfer, the discursive and social aspects of an assumed EU transference of norms are highlighted below.

48  LGBTI rights promotion within the EU Today, LGBTI rights norms across EU member states have been largely internalized as part of the global umbrella of human rights, in accordance with the statement that then U.S. Secretary of State Clinton made at the UN in 2011 that ‘gay rights are human rights’. All major European activist groups have adopted the human rights frame, and the EU institutions also use it; irrespective of the ambiguous pressing of a range of non-heterosexual behaviors and identities into a politically useful ‘LGBTI’ category. But this generalization only holds true to the extent that governments accept the rights frame, as Poland, Hungary, or Lithuania also dispute it by pointing, for instance, to the rights of religious persons and thus contest its universal relevance (Ayoub 2016). At the same time, the framing of LGBTI rights as human rights connects to the extensive European legal human rights framework established through the Council of Europe’s European Convention on Human Rights or the EU’s own Charter of Fundamental Rights. The latter, as a more recent document explicitly, includes ‘sexual orientation’ as a protected category, while the former consistently affirmed sexual orientation as grounds for non-discrimination in cases arising around the issue. Given this discursive weight, the international diffusion of norms functions differently than policy diffusion, the latter which is largely an effect of material and political influence (Boerzel and Risse 2012). This complicates the case of EU LGBTI rights promotion so that rather than simplistic norms transfer or diffusion, norm contestation as integral part of norm negotiations emerges (Wiener 2018). Norm contestation as a vibrant subfield of analysis within critical constructivism over the past decade cites a number of features ranging from struggles over norm definition and challenges to established norms to alternative patterns of norm diffusion (Lantis 2017). It is outside of the scope of this chapter to theorize norm creation or diffusion in the general populace, which, while constituting a legitimacy base for the expression of domestic policy preferences, is less significant for EU policy outcomes. It is instructive, however, to take a look at current popular opinion across Europe to gauge the general level of acceptance. The EU’s public opinion instrument Eurobarometer found in 2015 that twothirds of Europeans support equal rights for LGBTI citizens, but 60% also believe that discrimination based on SOGI characteristics is widespread; 61% are in favor of marriage equality, yet only 54% of Europeans would feel comfortable with a LGBTI person in a country’s highest office (Eurobarometer 437 2015). Together with more country-level data presented below, it attests to an uneven and non-linear diffusion of equality norms. These numbers evidence that while a general pro-LGBTI sentiment among a small majority of Europeans favorably compares to other world regions, many rights and privileges that are taken for granted by heterosexuals are still at the tipping point indicating a reversible norm (Finnemore and Sikkink 1996). Moreover, these aggregate figures hide significant national variations.

LGBTI rights promotion within the EU  49

Norm disparities among EU member states When policies regarding SOGI emerged on the EU’s radar in the mid-1990s, it was clear that the topic would receive more positive as well as negative attention in the future alongside the EU’s constitutionalization of internal and external human rights provisions. More than 20 years later, the situation of LGBTI people in the EU looks promising: 14 states have introduced samesex marriage and many others recognize civil unions, non-discrimination protections are widespread in European states and embedded in EU law, and the EU funds LGBTI initiatives to the tune of hundreds of million Euros over the past decade (European Parliament briefing 2018). Overall support for LGBTI equality has increased in the past five years from 71% to 76% in 2020, though with substantial differences among countries and an actual deterioration in nine states (Dalli 2020). The suggested uneven progress is backed up by country-level data: The 2019 FRA LGBTI survey shows that while in few countries such as Ireland, Finland, and Malta, over 70% attest to a decrease in LGBTI intolerance, in France and Poland, 54% and 68%, respectively, think that homophobia increased (Fundamental Rights Agency 2020). When measured by global standards, however, aggregate levels of homophobia are comparatively low. Hence it would appear that the EU has been a successful contributor to European LGBTI equality. Yet, legal EU competence does not extend to the recognition of marital or family status, so that national regulations regarding partnerships, adoption, etc. vary and are not consistent throughout the region (European Parliament 2020). Across Europe, national equality bodies share information on rights policies through the European Governmental LGBTI Focal Points Network, established by the Netherlands in 2004 and supported by a handful of other West European countries. But in what is described by the Economist (2020) as a ‘rainbow curtain’ dividing Europe, a populist and political response to more visible, progressive politics has emerged in the past few years, in particular in Central- and Eastern European (CEE) states. In the past decade, for almost every country that implemented marriage equality, another one chose to constitutionally limit such rights – seven CEE member states as of 2019 (Mos 2020). Furthermore, the call of European advocates for strict LGBTI protections embedded in hard law have laid bare the comparatively advanced status of such claims by exposing a gap between those and the more fundamental needs of LGBTI individuals such as trans* people still dealing with unemployment and hate-crimes. Beyond Europe, the relative success of SOGI rights in the region also highlights disparities between those and the difficulty of advocating for similar LGBTI standards abroad. In the absence of broader legal LGBTI rights protections in the EU outside the employment sector, and the reliance on norm diffusion across the Union, the malleability of domestic or even regional norms constitutes a primary concern. As the EU enlargement process has shown, given a strong incentive (EU membership) and consistent application (such as Annual

50  LGBTI rights promotion within the EU Progress reports), norms revolving around democratic governance, rule of law and human rights can change (Sedelmeier and Schimmelfennig 2005). The next chapter, however, comments on their volatility and details some of the inconsistencies surrounding the accession monitoring. At the same time, regressive political tendencies have become more pronounced after EU accession in countries such as Croatia, Poland, or Hungary. Once conditionality expires with the attainment of membership, the normative diffusion processes involving social learning, persuasion as well as negotiation through regular trans-governmental exchanges should consolidate rights adaptation. In reality, a contestation of LGBTI rights norms emerged in many newer member states, as there was little time for social learning given the relatively quick incorporation of post-communist states into the EU, limited choices other than to adapt to the preset normative expectations of the EU’s Western states, and little negotiation room over the requirements of such norms. To illustrate the EU’s normative rigidity in this regard, non-discrimination legislation is often cited as ‘non-negotiable’ for closer access to the EU. Focusing on national political levels as determinants of norm adoption, research on the comparative relationship of lesbian and gay movements and the state (Tremblay et al. 2011) evidences that states respond differently to LGBTI claims depending on their spatial political, that is, federal-unitary and configuration. Applied to the European context, this means that states with regional autonomy provisions such as Belgium, Germany, Austria, and the United Kingdom should in theory make it easier for policy changes to occur on a sub-national level. Sub-national regional governments, in turn, enable pressures to be uploaded onto the national level and eventually onto the EU level once a majority of pro-LGBTI member states exist. In the UK and Belgium, we have seen the advancement of such bills along regional lines, though not in other federal states such as Germany or Austria, where national parliaments or courts, respectively, have legalized same-sex marriage, for example. Domestically focused activists can make use of this wide array of political opportunity structures, that is, potentially supportive domestic as well as international institutions and actors, and increase their visibility through transnational activism (Ayoub 2016). This assertion highlights the pluralist influence on LGBTI rights, positing that countries that have many diverse political parties, civil society groups, and other public stakeholders are able to engage in strategic coalition-building and framing of issues so that the newly visible norms become internalized on the political elite and mass level. But this kind of visibility push by activists also engenders countermovements that are ‘un-civil’ and exclusive in nature (Ruzza 2009). My exchanges with LGBTI-activists evidence that they predominantly support the notion of ‘LGBTI rights’ as an inclusive, expedient frame to characterize their advocacy in their domestic terrain. And most subscribe to the classic liberal notion that all states should guarantee the same LGBTI

LGBTI rights promotion within the EU  51 rights standards. But they also recognize the polarized and politicized way in which these norms advance: “Rights are improving, yet negative public sentiment towards gays, lesbians etc. is growing” (I-4). At the same time, few activists express concern over the ambivalent role the EU plays in promoting them: “Our government doesn’t really care about or supports LGBTI rights. I believe my country also strives to, at least on the surface, please the EU” (I-11). The latter statement highlights the deeper issue with the sustainability of human rights promotion in countries whose changes are largely based on external incentives rather than domestic internalization. EU member states are not discrete, independent polities anymore, but experience constant exposure to other regional actors and (inter)governmental influences. That means countries which have a longer history of liberal democracy, regional integration, and transnational trade links may more easily adapt to emerging LGBTI rights claims in the EU – think of progressively open Scandinavian states as opposed to the neighboring, more rights-resistant Baltic countries. Yet, the largely neoliberal positioning of the EU as rights community contingent on its single market also constraints the extensions of variably conceived human rights based on market freedoms, as human rights and neoliberalism operate on different principles and values (Woodward and Van der Vleuten 2014, 70). The domestic post-material transformations that occurred in most member states based on the shift to a globalized services economy add further complexity. The thus- created socially and spatially mobile ‘Brahmin left’ class (Piketty 2019) aligns more easily with liberal EU values, often in domestic opposition to conservatives, or aggrieved working classes affected by regional integration. The limitations of the existing employment-based EU antidiscrimination directive, or the attitudes of some member states accepting the EU’s market logic but rejecting any wider EU-led rights advances exemplified by the Polish and the Czech opt-out of the Charter of Fundamental Rights, back up this argument. Queer Theory further questions the marketization of rights and inclusion into heteronormative, consumption-based social orders (Duggan 2002), which is evident in the EU case as well. The European Commission, in its 2018 LGBTI white paper, lists 12 strategies to streamline LGBTI policy actions (such as exchanging best practices among ministries or supporting CSOs) but also highlights the uneven implementation of those among member states. Although more than 20 states on average have implemented the majority of those strategies, a handful of CEE states stand out as underperformers (European Commission 2018). In order to obtain a slightly different overview of the resulting diversity of Europe’s LGBTI laws and policies, it is worth taking a look at ILGAEurope’s annual ‘Rainbow Map’ (established 2009, see Figures 3.1 and 3.2) which classifies the region in this respect. One should, however, be cognizant of the way in which these maps create tensions of their own in their use for peer pressure based on Western rights standards (Rao 2014). They are also unable to capture EU-level legal changes to be transposed into domestic

52  LGBTI rights promotion within the EU

ILGA-Europe Rainbow Map May 2013

56%

reflecting the national legal and policy human rights situation of lesbian, gay, bisexual, trans and intersex (LGBTI) people in Europe

Equality for lesbian, gay, bisexual, trans and intersex people in Europe

ILGA-Europe Rainbow Map explanatory document and detailed index: www.ilga-europe.org/rainboweurope

100%

respect of human rights, full equality

95% 90%

47%

85%

66%

65%

80%

29%

United Kingdom

75%

20% 57%

36% 77%

21%

14%

10%

65%

22%

54% 35%

16% 29%

64%

65%

7%

21%

60% 67% 28%

70%

43% 35%

14%

12%

Belgium Norway Sweden, Spain, Portugal France

60%

Netherlands

55%

Denmark Iceland Hungary Germany

50% 45%

27%

10%

55%

40%

31%

48%

8%

21%

8%

20% 25% 18% 27% 14% 13% FYR

19%

65%

35% 30% 25% 20%

14%

38%

15%

28%

10% 5%

35%

With support from the European Union. Sole responsibility lies with the authors and the European Commission is not responsible for any use that may be made of the information contained therein.

20%

0%

Croatia Finland Austria Albania Ireland Malta, Slovenia, Czech Republic Romania Estonia, Switzerland Luxembourg, Greece Slovakia, Montenegro Serbia Poland Georgia, Lithuania, Andorra Bosnia&Herzegovina , Cyprus, Latvia Italy Bulgaria Liechtenstein Turkey, San Marino, Belarus, Kosovo FYR Macedonia Ukraine Monaco, Moldova Azerbaijan, Armenia Russia

gross violations of human rights, discrimination

Figure 3.1 Rainbow Europe Map, ILGA Europe, 2013. Source: ILGA Rainbow Europe Project, https://www.ilga-europe.org/rainboweurope/2013.

P 2020

100%

RESPECT OF HUMAN RIGHTS, FULL EQUALITY

54%

ICELAND

95%

90%

MALTA 89

66%

FINLAND

85%

68%

80%

NORWAY

65%

60%

ESTONIA

63% SWEDEN

BELGIUM / LUXEMBURG 73 DENMARK / NORWAY 68 SPAIN 67 PORTUGAL / FINLAND / UNITED KINGDOM 66

68%

52%

17% LATVIA

DENMARK

IRELAND

23%

LITHUANIA

66%

SWEDEN 63 MONTENEGRO / NETHERLANDS 62

UNITED KINGDOM

13%

62%

BELARUS

THE NETHERLANDS

55%

50%

FRANCE 56 ICELAND 54 IRELAND 52 GERMANY 51 AUSTRIA 50

16%

51%

POLAND

GERMANY

73%

BELGIUM

GREECE 48

45%

40%

SLOVENIA 42

35%

30%

SERBIA / HUNGARY 33 ALBANIA / CYPRUS 31 GEORGIA / SLOVAKIA 30 CZECH REPUBLIC 26 NORTH MACEDONIA 25

15%

LITHUANIA / ITALY 23 UKRAINE 22 BULGARIA 20 MOLDOVA / ROMANIA 19 LIECHTENSTEIN 18 LATVIA 17 POLAND 16

10%

SAN MARINO / BELARUS 13 MONACO 11 RUSSIA 10

20%

26%

73% LUXEMBOURG

CROATIA 46

ESTONIA 38 BOSIA & HERZEGOVINA 37 SWITZERLAND 36 KOSOVO* / ANDORRA 35

25%

10% RUSSIA

38%

75%

70%

CZECH REPUBLIC

18%

56%

FRANCE

50% AUSTRIA

36% SWITZERLAND

42% SLOVENIA

11% 35% ANDORRA 66%

PORTUGAL

67%

MONACO

13%

SAN MARINO

22%

UKRAINE

30%

19%

SLOVIAKIA

LIECHTENESTEIN

MOLDOVA

33%

HUNGARY

19%

TURKEY 4 AZERBAIJAN 2

GEORGIA

2% AZERBAIJAN 8% ARMENIA

SERBIA

&HERZEGOVINA

23% ITALY

62%

MONTENEGRO

SPAIN

35% KOSOVO*

20%

BULGARIA

25% NORTH 31% MACEDONIA

4% TURKEY

ALBANIA

48% GREECE

ARMENIA 8

5%

0%

30%

ROMANIA

33%

37% 46% BOSNIA CROATIA

89%

31% CYPRUS

MALTA

GROSS VIOLATIONS OF HUMAN RIGHTS, DISCRIMINATION

HOW DID WE CALCULATE THESE SCORES? HAVE A LOOK AT

Figure 3.2 Rainbow Europe Map, ILGA Europe, 2020. Source: ILGA Europe, https://www.ilga-europe.org/rainboweurope/2020.

Co-funded by the Rights Equality and Citizenship (REC) programme 2014-2020 of the European Union.

LGBTI rights promotion within the EU  53 law, EU Court judgments, or attitudinal changes. Calculated from cumulative sub-scores relating to each country’s non-discrimination and hate crime laws, family policies, gender and asylum recognition and civil freedoms, EU state scores in 2020 range from a mediocre 16% in Poland to 89% in Malta. There is a stark difference in the averages between West European countries (which range from 50% to 80%) and CEE countries that hover in the 10–40% range. Tracking the scores from 2013 – the first time the same percentage-scoring system was used – to 2020, one notices that while most West European, older member states maintained or slightly improved in terms of LGBTI rights, six CEE states deteriorated (Latvia, Croatia, Poland, Czech Republic, Hungary, and Romania). Previous editions operating on a slightly different scale evidence the same East–West and, albeit less pronounced, North–South split or “fracture line” (European Parliamentary Research Service 2018: The prevalence of divergent sub-regional norms in CEE can be explained by domestic and regional transnational factors. As alluded to above, the domestic constellation of elite actors such as political leaders, parties, religious authorities, and civil society representatives determine a country’s amenability to LGBTI rights. If these political agents see these rights claims as consistent with their political culture, norms, and strategic objectives, they will likely support them. Alternatively, if they perceive LGBTI individuals as threats to their national interest and political culture, they are likely to exclude them and instrumentalize them for their own purpose in a ‘state-homophobic’ strategy (Weiss and Bosia 2013). As of 2020, all of the six norm-resistant countries are governed by center-right to far-right parties and coalitions and qualify as religious in the European context with the Catholic and Orthodox Church leadership and associated civil actors firmly opposing LGBTI norms. In this regard, Kollman (2007) contributes the explanatory factors religion and the perceived legitimacy of Western norms as determinative for the acceptance or rejection of same-sex equality. These two factors are particularly relevant for the outcome of the EU’s diffusion of LGBTI rights: if religion and Western norm acceptance are co-determining domestic variables, then the EU is slated to experience difficulties independent of its own role in LGBTI rights promotion. Comparatively speaking, the older West European EU states, with few exceptions, such as Italy, tend to be more secular. Be it through state-instituted secularism as in France, or through prominent rights-enabling secularization norms after democratization, such as in Germany or in the Iberian peninsula, they constitutionally limit religious influence in the public sector. In contrast, most CEE states exhibit medium to high religiosity of a Catholic or Orthodox nature that has been embraced as an ally by governments after the end of Communism, which inhibits the acceptance of sexual equality norms. Religious, but also right-wing ‘neo-fascist’ homophobia is also remarked upon by activists I surveyed, who cite the Catholic and Orthodox churches, as well as Islamic fundamentalists as visible norm anti-preneurs in their home countries. The neo-fascists have different motivations, but similarly agitate against the

54  LGBTI rights promotion within the EU expansion of LGBTI rights, as one activist from the region notes: “We also have a fascist group named ‘the new right’ who organizes stuff like ‘normality’ marches’” (7). These anti-preneurs use the EU’s high-visibility measures, such as pride marches or more conceptually, same-sex marriage, to counter with their own actions. Such counter-moves question the effectiveness of such generalized visibility benchmarks as sign of an apparent tolerance in widely varying contexts. This rejection of Western-centric norms diffused in the EU links back to nationalist sovereignty ideals, which are already undermined by the EU’s queering of national sovereignty. Such sovereignty issues have come to the fore in recent years, exemplified by the extensive contention over applying rule-of-law monitoring for member states, which the Visegrad 4 group of CEE countries led by Poland and Hungary are skeptical of (Euractiv 2019). These concerns extend to CEE countries’ input in joint governance, where studies found a continuous lack of appointments in EU leadership positions for the region, which could “severely undermine support for the EU’s institutions, values and policies” (Drounau 2021). More than a mere political transformation, the curtailing of sovereignty through EU governance is a sensitive matter for CEE states after the prolonged period of Soviet suppression of national identity, which produces an almost ‘naturalized’ desire to return to national autonomy and identity. The latter is at times built on a revisionist, nationalistic vision of history. Moreover, national identities can conflict with the wish to ‘return to Europe’ if EU accession is tied to giving up nationally cherished ideals and pressure to adhere to new contentious norms such as refugee integration or tolerance of minorities. The rapid implosion of socialism and its economic, social, cultural, and political structures in 1989 confronted CEE states with sexual rights policies of the West developed over decades. Depending on the progress of socio-economic transformation and democratic stabilization, individual countries in the region responded differently to the varying EU rights claims without adopting a linear, progressive stance. Simultaneously, CEE countries were ‘othered’ by Western European actors labeling them a post-communist ‘contemporary periphery’ that contrasted with the idealized (neo)liberal, pro-LGBTI West (Kulpa and Mizielinska 2011). This becomes apparent in the regular reminders that were sent to the aspiring member states, that LGBTI rights are part of the Copenhagen rights norms for membership, and thus needed to be accepted. Under conditions of rapid shock liberalization, these approaches are tendentiously perceived to be paternalistic in tone and character. As a response, some CEE states strategized to implement what I call a ‘Potemkin adoption’ so as to adhere to required EU laws during their candidacy for membership. After accession, however, many states regress to enshrine prohibitions to, for example, same-sex marriage, into law as occurred in Hungary and Croatia, or to more general LGBTI visibility as implemented in Lithuania’s anti-homosexuality propaganda laws. Based on their domestically

LGBTI rights promotion within the EU  55 volatile stance regarding SOGI issues, their governments’ opinion on the issue may be ambiguous, or they may even be opposed to the EU’s proLGBTI policies. To sum up the domestic variation in LGBTI rights, the inclinations of domestic elites as well as sub-regional differences among member states influence the degree to which these norms are accepted and internalized. On the one hand, the divergence in implementing LGBTI friendly policies evidenced between older and newer member states is largely a result of the incompatibility of domestic political cultures, sexual, and religious norms with EU ones as well as political objection to Western-based rights promotion. Moreover, a lack of socio-economic development separates the stances of West European countries and CEE states, with the latter often feeling dominated by LGBTI-friendly governments and the EU institutions. On the other side, the oppositional posture of many CEE states vis-à-vis EU rights norms evidences a reactionary attitude based on West European states’ insistence on LGBTI rights as accession criteria and beyond that as a benchmark rights objective for members. Beyond those rights, ‘gender ideology’ or the ‘refugee flood’ is viewed as further neo-colonial imports, advanced by the EU, and to a lesser extent, transnational CSOs. This lack of cohesion indicates that the EU as a whole may be better placed to diffuse already existing norms only once they become a firm set of constitutive norms embedded in law and politics. As of now, however, it appears that LGBTI norms are weak internally and perceived as largely regulative in character, and thus still in the process of being negotiated, contested, or even reversed. As Weber (2016) and other queer theorists have noted, the visible highlighting of LGBTI rights can deteriorate the diffusion and internalization of such norms, given their linkage to a country’s sovereignty. The insistence on ambiguous rights norms foreground a logic of material and political consequences rather than on a logic of appropriateness, which prevents convincing those states in a persuasive manner.

Missing in (inter)action? EU-level norm diffusion politics In tracing the limitations and inconsistencies of LGBTI rights norm promotion across EU institutions, a multitude of actors, venues, and strategies become apparent. In terms of actors, one can distinguish between individual and institutional agents both acting in relation with one another. Their strategic options range from legislating hard law in areas of EU legal competence to soft law options such as peer benchmarking and funding programs. Notably, most EU institutions are independent from electoral pressures as only the EP is elected, while the others consist of delegates appointed from national governments. This allows the institutions to act relatively autonomously when introducing new policy ideas and principles. At the same time, the Union’s complex legislative machinery necessitates the search for consensus and compromise, not least because the member state governments

56  LGBTI rights promotion within the EU are equally involved in the legislative process through the Council. The latter procedural reality serves as a national check on EU institutions. In view of this institutional fragmentation, a consistency between the EU’s internal and external policies is advised for the projection of the EU’s values, indicated by Duke’s (2013) statement that if the EU promotes itself as a paragon of peaceful co-existence, or an area of ‘human dignity, freedom, democracy, equality, the rule of law and respect for human rights’, it must be seen to be so internally or else the external public diplomacy will ring hollow. (9) When thinking about the relationship between the national and EU levels, Finnemore and Sikkink (1996) prominently note that no uni-directional relationships between international and domestic stages exist. Rather, an exchange occurs between both levels by which domestic norm entrepreneurs invoke norms to advance a transnational norm emergence and diffusion process called ‘norm cascade’ (893). They argue that a “pressure for conformity, a desire to enhance international legitimization, and a desire of state leaders to enhance their self-esteem facilitate norm cascades” (895). As will be detailed below, in the case of LGBTI rights, there has only been conditional pressure, mostly when the EU was able to evoke conditionality in accession periods. Yet, once aspiring states became members, pressures for conformity ceased to exist as countries were certified as rights-adherent states based on EU membership. Similarly, international legitimization through LGBTI rights promotion is not universally or even regionally available, given the contested nature of those norms. Finally, state leaders are less interested in enhancing their reputation based on the polarized standing of these norms across Europe and the EU’s current embattled position in some member states. Hence the linearity with which norm entrepreneurship was conceived of does not necessarily correspond to policy practice, as more recent research focusing on opposing ‘anti-preneurs’ emphasizes the politics of resistance to norms (Bloomfield and Scott 2017). The preceding section evidenced that there is still a substantial acceptance gap for constitutive LGBTI rights norms across EU member states. As Ayoub (2016) summarizes: existing theories for successful (LGBTI rights norm) diffusion cannot adequately explain this discrepancy, though such theories – differences in international pressures, the fit between domestic and international norms, modernization, low implementation costs – are useful for a baseline understanding of how and why norms change in a multitude of states. (10)

LGBTI rights promotion within the EU  57 He posits that norm visibility as a characteristic of societal internalization matters for activists and societies more generally. While norm visibility imported by transnational activists is convincingly applied in his work, it plays less of a role in EU-level interactions, as policy elites are to a large degree cognizant of rights norms as a legal–political concept when negotiating over such policies. In this sense, a legal norm is required to be institutionally present, referred to and used in bureaucratic practice to reach ‘prescriptive status’ (Risse-Kappen 1996) – which delimits the effects of persuasion and learning based on norm visibility in policy circles. Norm visibility, negotiation, and persuasion are more strongly required in initial and public norm emergence settings. The following review of the main EU actors details the degree to which a rights-based consensus within and between EU institutions exists. Historically, the courts have been significant in leading the way to a Europe-wide recognition of LGBTI rights norms. While the Court of Justice of the EU (CJEU) has only been in recent years more active in this area, based on the EU’s incorporation of the Fundamental Rights Charter in 2009, it is one of the venues that is endowed with some constitutive normative power. Unlike the specialized European Court of Human Rights of the Council of Europe (a related non-EU institution), the CJEU is also one of the main EU institutions and has enforcement powers. This makes it a significant institutional norm entrepreneur. Importantly, the CJEU declared persecution based on sexual orientation a valid reason for asylum in 2013. Moreover, a CJEU decision in 2014 stipulated that homosexual asylum seekers in the EU must receive human-rights compliant and individualized assessments of their cases. In addition, a 2013 judgement prohibited the repatriation of individuals to countries that persecute same-sex activities. In 2018, the Court dismissed the Hungarian government’s application of psychological tests to determine an asylum seeker’s sexual orientation. These decisions need not only be heeded by all member states but also signal the importance of upholding such rights, despite the often-varying reception conditions in individual member states (Torrisi 2017). Especially in asylum-related cases, the CJEU inhabits border-transcending powers of adjudication, though the court has also aided the legal harmonization of same-sex partnerships within the EU. In 2018, it recognized the right to reside as married couple in every EU state, no matter the SOGI status or the country’s partnership laws. This judgement overruled an initial refusal by the Romanian government to acknowledge a Romanian–American gay couple and thus is considered an important precedent with a potentially far-reaching marriage equality implications across the EU (De Vries-Jordan 2018), but it also led to stronger political opposition in the country, including the emergence of a nationalist party the following year. LGBTI rights norms are not only visible in the Courts but also in various other EU institutions. In the EU’s complex multistakeholder system,

58  LGBTI rights promotion within the EU the executive Commission, the member states represented in the Council and the EP are the main performative agents discussing and developing LGBTI rights policies. All of these institutions have created LGBTI toolkits, which specify how to best promote those rights within the confines of their legal competence. The European Commission, as the EU’s executive body, published an action plan in 2015 and committed itself to monitor every legislative proposal with the help of a “fundamental rights check” (European Commission 2017). In recent years, a more specific EU roadmap for LGBTI equality has been requested by 19 exclusively – with the exception of Czech Republic and Estonia – West European member states. Such a roadmap or strategy would then be used to define further laws and specific actions, “describe the problem to be tackled and objectives to be met, explain why EU action is needed, outline policy options and describe the main features of the consultation strategy” (European Commission 2020b). Over the years, the number of Commissioners tasked with rights maintenance in the EU has increased as well. In the legislative period 2019–2024, three Commissioners, one for ‘Values and Transparency’, one for ‘Justice’, and one for ‘Equality’ – the first of its kind – coordinate on LGBTI-related issues. Responding to the member states request for a roadmap, equality Commissioner Dalli published the first LGBTI equality strategy in 2020, which focuses on nondiscrimination in labor markets, the fight against hate crimes, the recognition of rainbow families, and an external promotion of LGBTI rights (European Commission 2020a). This non-binding roadmap, however, will require the involvement of all EU institutions, member states, and CSOs if it is to be effective, with national action plans foregrounding the role of persuasion and socialization of governments. Given that predominantly Western European states requested such a strategy, a norm negotiation with more reluctant CEE member states will be difficult as existing SOGI rights are taken as the baseline for the development of policy actions. If norm contestation is an integral part of norm promotion and diffusion, as Wiener (2018) states, such executive instruction makes it harder for states from having substantial investment in the promulgated norms in the first place. Because of the EU’s statutory referral to its founding norms, there is little room for domestic normative re-articulation available. This becomes ever more problematic when these weakly constituted EU norms are to be more assertively promoted internationally, as Commission President Van der Leyen pledged to do with her ‘geopolitical Commission’ (European Parliament Briefing 2020). The EP is a strong norm promoter as well, yet with more limited means in the policy-process, as it has to co-legislate with the member-state dominated Council. The EP’s Intergroup of 143 LGBTI (-interested) parliamentarians, the largest of all intergroups, provides support for such rights in a number of ways by monitoring the EU’s activities as well as LGBTI rights maintenance in EU states. And it connects with civil society across the Union in an effort to promote such rights internally and externally. It includes active political norm entrepreneurs such as former MEP Ulrike Lunacek from the Green

LGBTI rights promotion within the EU  59 Party, arguably the Parliament’s most active LGBTI advocate to date. The EP subcommittees are less reliable as their composition and leadership can change with the electoral makeup of each legislative term. With a doubling in populist far-right politicians in the EP over the past decade from approximately 50 to over 100 (out of 705) members, the debates surrounding human rights have become more entrenched along party lines. But in an indication that not only rightist party allegiance but also individual and cultural factors play a determining factor, in early 2021, a Lithuanian MEP from the liberal-centrist ‘Renew Europe’ party group caused a scandal and was subsequently expelled when referring to LGBTI people as “perverts and deviants” in a Facebook message (Bayer 2021). The Parliament’s leadership has at times made questionable choices as well, for example, when, in 2019, the then-President Tajani planned to appear as speaker at the homophobe ‘World Congress of Families’ – which operates with notable financial support by U.S.-based conservatives – until reprimanded by the parliament’s LGBTI intergroup. Furthermore, the EP has issued over the past decade a handful of declarations with an overwhelming majority condemning homophobia in the CEE EU member states and Russia, Moldova, and Ukraine (EU Observer 2012). In this practice, CEE members and non-EU states are treated similarly, with little differentiation as to the affiliate status of the targeted country. In contrast, the member states represented in the Council are even less united on LGBTI rights: In 2012, the Council together with the main EU institutions jointly adopted the Strategic Framework on Human Rights and Democracy. The main document lists, among 15 priorities, the pursuit of the “enjoyment of human rights by LGBTI persons”, including the development of public LGBTI guidelines. It also contains a strategy on how to cooperate with third countries on human rights of LGBTI persons, including within the UN, OSCE, and Council of Europe. In 2015, the Human Rights & Democracy Action plan was updated to reflect the goals for 2015–2019. In it, women’s rights remain a high priority, but LGBTI rights have been relegated to support of human rights defenders more generally and are subsumed under anti-discrimination measures next to migrant and indigenous rights (EU Council 2015). And a 2016 evaluation of the implementation of the EU LGBTI Guidelines by ILGA evidenced an insufficient implementation of those, in part based on a lack of consultation of EU delegations with civil society actors in the countries concerned (ILGA Europe 2016). Given that the Council represents the various member states, it can be expected that norm convergence will be difficult, so that its consensual decisionmaking process tends to result in the lowering of standards to a commonly accepted denominator. This is also true of the inclusion of references to the ‘respect for national diversity’, akin to established reservation procedures in other intergovernmental organizations allowing states to deviate from common standards with reference to their national priorities. This becomes even more pronounced in foreign affairs (Councils), where unanimity is required.

60  LGBTI rights promotion within the EU To further illustrate the disparity among member states when negotiating over common norms, in 2018, at two separate Council minister meetings, Poland and Hungary blocked joint conclusions that contained passages about LGBTI protections with reference to the conservative values of their societies. This was an unprecedented diplomatic move that elicited outcries from other member state representatives. Such populist maneuvers appear even more questionable as new data shows that a slight majority of citizens in both countries supports same-sex partnerships, though not marriage per se (Politico EU 2019). Thus, LGBTI norm negotiations are often led without the necessary nuance in institutional settings and can be instrumentalized by state actors on each side of the issue. The European External Action Service (EEAS) as the EU’s foreign diplomatic service in charge of foreign policy areas ranging from security and defense to election supervision has the potential to be more impactful in this regard. Together with the European Commission, it coordinates the implementation of development aid and is present in over 140 countries globally, and it represents the EU in other states and IGOs such as the UN. It specifically recognizes the rights of LGBTI persons as an important benchmark in its dealings with countries around the world, based on the 2013 LGBTI guidelines developed together with EU foreign ministers. These guidelines aim to combat homophobia, decriminalize homosexuality, and to support human rights defenders in third countries (EU Foreign Affairs Council 2013) and are evidence of a more differentiated country-specific strategy. In terms of international civil society support, the Commission together with the EEAS is supporting an annual meeting of human rights NGOs working on democracy and human rights called the ‘EU-NGO Human Rights Forum’. The forum is aimed at exchanging best practices and guidance for human rights promotion without raising the issue of LGBTI rights specifically. Together, these recent institutional developments are indeed promising, although they rely on member state approval and thus remain open to EU-internal contestation. Finally, in 2012, the EU established the office of EU Special Representative for Human Rights, who works together with the EEAS to promote human rights across the world in a more personalized, flexible manner akin to a special envoy. However, given the breadth of human rights issues across the globe, it can only be considered a weak auxiliary instrument. Other affiliated institutions include the EU Fundamental Rights Agency, which specializes in promoting human rights within the EU and supplies surveys and recommendations to the EU institutions for pre-legislative input (Thiel 2011). As an auxiliary body, the Council of Europe, which operates the European Court of Human Rights and collects and compares peer-reviews of SOGI policies in its 47 member states, further support regional norm diffusion. On domestic levels, national human rights institutions are clearinghouses for rights-related issues and collaborate with the previously mentioned European Governmental LGBTI Focal Points Network. Overall, a

LGBTI rights promotion within the EU  61 broad set of interacting and indeed interlocking institutions exist, in terms of applying norms, policies, and laws, with the aim of protecting and advancing LGBTI equality. At the same time, fragmentation and incoherence are evident as well. Moving away from institutional to performative considerations of European normative convergence, one important discursive aspect of LGBTI rights norm diffusion is their linkage to the concept of Europe. Ayoub and Paternotte (2014) show how both terms have merged into a uniquely powerful, yet idiosyncratic symbiosis: “Europe is a normative framework that constitutes LGBT actors’ interests and strategies, and in turn these actors (re)create European structures and institutions by linking them to LGBT rights” (7). They further differentiate the meaning of ‘Europe’ for LGBTI issues as an institutional entity, an activist project, and a source of exclusion and a threat, and highlight the variability of such notions (Ayoub and Paternotte 2020). By linking LGBTI rights to a European ideal, norm entrepreneurs not only defined both terms relatively successful in a mutually supportive manner but also excluded internal and external ‘homophobic others’ (17). This leads to pushback by states if they feel that there exists only one institutionally advanced idea of Europe inclusive of LGBTI rights that they have to integrate in; conceptually empty as these concepts may be similar to the notion of ‘human rights’. In fact, the flexible human rights frame allowed the EU Council to adopt the LGBTI guidelines on the same day as the guidelines on the protection of the Freedom of Religion or Belief (Jenichen 2020). The connecting of ‘Europe’ with ‘LGBTI rights’ also leads the states to react differently depending on their national identity’s historical relation to Europe. Such positioning can be detrimental, for instance in Serbia that had less European historical links than Croatia, with repercussion for EU-advocated rights policies (Vasilev 2016). This historical contingency is also evident in the Euro-scepticism of the Polish or Hungarian government painting any policy resembling a ‘European’ approach as intrusive in character, akin to Soviet domination. Hence the forceful push for LGBTI rights against resistant EU member states, rather than engaging those, may deny them agency and autonomy – a contributing factor to the current Eurosceptic populism we see in many member states. And it is not just LGBTI norms that are questioned as a reflection of European values; the more recent debate on strengthening social rights after the UK’s departure from the EU reflects a similar contention across member states and that despite having a stronger tradition in the EU (Politico EU 2017). Speaking of the ‘European’ character of such norms, O’Dwyer (2012) suggests that the increasing polarization of LGBTI rights in Poland was indicative of the lack of Europeanization of such norms, but that this vacuum helped rally domestic LGBTI movements and their supporters. Taken together, the linking of sexual rights norms and European values appears indeed beset with inconsistencies and not always conducive to a substantive as well as sustainable LGBTI rights diffusion.

62  LGBTI rights promotion within the EU Last, when talking about EU-wide norm diffusion, one cannot leave out the states outside the EU or the international normative environment as they provide reference points for the Union’s actions. For instance, the U.S., which exhibit a more idiosyncratic stance on LGBTI rights in that conservative administrations do not concur with the EU’s progressive stance, may be perceived as an international opponent during that time. Conversely, they present an opportunity structure when more supportive democratic administrations promote LGBTI rights in tune with the EU. Equally problematic, U.S.-based evangelical as well as political forces have supported homophobe as well as far-right organizations in Europe, funneling millions of dollars to aid their cause. Other countries of significance, such as Russia, may act as counterpoint to the EU’s liberal stance, providing support to norm anti-preneurs to diffuse opposing norms through polemic and disinformation. China is currently undergoing a slow reconsideration of LGBTI rights norms and Taiwan legalized gay marriage in 2017, though the former certainly rejects any activism that could lead to a political liberalization within. And counterparts in the Global South may either not have a cognitive association of LGBTI rights norms with Europe nor do they accept any attempts to link both concepts as this often conditional coupling is perceived as yet another instance of neocolonial intrusion (see Chapter 5). Finally, the UN, while having made slow progress in recent years, including through the appointment of a special UN LGBT Envoy, as the representation of the international community is split on this issue as D’Amico describes the UN as “dis-united” on LGBTI rights (D’Amico 2015; see also Chapter 6). Given this volatile global context, queer theorists such as Altman and Symons (2016) advance that there’s an advantage to an “incremental approach in that it avoids the kind of moral schisms, backlash and polarization that can be prompted by highly public moralizing” (155). In view of the preceding complications, a more tempered approach to external rights promotion may ultimately yield better results.

Conclusion The rights of LGBTI individuals in the EU have received unprecedented support over the past two decades, with an overall success in rights promotion that is envied by other ethno-national or social minorities in the region. Yet, this chapter has shown that LGBTI rights norm adoption across EU member states has been uneven and can be politically and discursively charged. And because of the weak legal base and inconsistent institutionalization of LGBT rights between member states and EU institutions, LGBTI rights promotion can appear as institutional identity-politics rather than a constitutive, generalized norm. Nor can the EU claim singularly such advances, as non-EU states such as Switzerland and Norway have similarly developed anti-discrimination and equality laws. A forceful approach that equates LGBTI rights with EU influence and leaves little room for national

LGBTI rights promotion within the EU  63 variations and negotiations, appears moralistic, and may feed into the perception of the EU’s ‘civilizing mission’. A less pronounced approach to LGBTI rights promotion may actually represent, in a counter-intuitive manner, a better strategy because it avoids the triggering of value-based contentions among member states and in EU institutions. Yet, the more recent move away from an emphasis on creating a legitimate base for these norms to quantifiable assessments of rights indicators and roadmaps, while constituting valuable supplements, does detract from the central necessity of norm negotiation, legitimization, and socialization. EU institutions relying on collected data such as ILGA’s Rainbow Europe project or EU Fundamental Rights Agency surveys also obscures that not all SOGI-related issues can be measured as such. Norm polarization and contestation as integral part of norm diffusion processes have become more evident in the attempted formation of a consensus on European LGBTI norms. This is complicated by the fact that the norm contesting states are almost always the newer EU and more religious member states. Hence ideational norm diffusion through contagion or emulation is bound up with questions of power, domestic culture, and regional hierarchical order. It appears that while, for Western European states, LGBTI norms are part of a constitutive set of political norms, in CEE states, these are largely perceived as regulatory or even interventionist. Just as older states have differently perceived norms regarding LGBTI rights based on history and culture, so do newly accessed states, delaying a potential convergence on LGBTI rights over time. Despite differences among all EU member states in terms of rights achievement, it is the CEE region that is being classified as ‘backward’ or ‘homophobe’, without recognizing the contingency of those norms on a number of socio-economic, cultural-historic, and geopolitical factors. Queer theory highlights the avoidance of such simplistic binaries. Accordingly, this analysis characterizes the norm disparities not as a strict East–West differential as this would set up another binary of pro/anti-LGBTI states but rather perceives of those as a result of a complex web of domestic, transnational, and intergovernmental governance factors that condition SOGI tolerance in each case. Such nuance is important as it is not only the degree of norm acceptance but also other constitutive characteristics that play a role in the acceptance or contestation of such norms. A singular EU norm promotion in the absence of a consensus on those, particularly if they are morally contested, can be counterproductive. Instead of promoting LGBTI rights norms through EU pressure across the region, the reliance on transnational movement support may make more sense, as it tempers some of the problematic norm clashes in the panEuropean public sphere. A concentration on bottom-up norm changes in the civil societies of the countries concerned may also be more sustainable, as their positions, unlike governments who think in electoral terms, do not change quickly. And a relatively open and pluralistic civil space exists in all EU member states even to a more limited degree in Hungary and Poland. Yet

64  LGBTI rights promotion within the EU receiving EU funding and support, the corresponding accessibility to EUlevel decision-makers is difficult to obtain for most domestic CSOs. More direct EU support for civil society can likewise appear as interventionist; though less so in the EU than elsewhere. Given that ‘LGBTI’ and ‘human rights’, and ‘Europe’ are diffuse concepts that can be manipulated by proponents and opponents alike, the EU stands to gain from the downplaying of normative moralism. Aspiring to be a normative actor is problematic when there is an inconsistency of norms and practices and incoherence between internal and external policies. Such processes become even more complex when external countries are supposed to morph into member or associated states, as the following chapter details.

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LGBTI rights promotion within the EU  65 Castronovo, Russ and Nelson, Dana. Durham, NC: Duke University Press, 2002, 175–194. Duke, Simon. 2013. “The European External Action Service and Public Diplomacy”, Clingendael Institute Working Paper 127. The Economist. “The Rainbow Curtain”, Charlemagne Op-Ed, November 21, 2020. EU Foreign Affairs Council. 2013. EU Guidelines to Promote and Protect the Enjoyment of All Human Rights by LGBTI Persons, 24 June. «https://eeas.europa. eu/sites/eeas/files/137584.pdf» Accessed May 12, 2021. EU Council. 2015. Action Plan on Democracy and Human Rights. https://ec.europa. eu/anti-trafficking/sites/default/files/council_conclusions_on_the_action_plan_ on_human_rights_and_democracy_2015_-_2019.pdf, accessed May 12, 2021. Euractiv. “Visegrad Countries Slam Finnish Presidency MFF Paper”, https:// www.euractiv.com/section/future-eu/news/visegrad-countries-slam-finnishpresidency-mff-paper/, accessed November 18, 2019. EU Observer. 2012. “MEPs Condemn Homophobia in Eastern Europe”, https:// euobserver.com/lgbti/116371, accessed April 26, 2017. European Commission. 2017. “Eurobarometer 437, Discrimination in the EU 2015”, http://ec.europa.eu/COMMFrontOffice/publicopinion/index.cfm/Survey/ getSurveyDetail/instruments/SPECIAL/surveyKy/2077, accessed April 24, 2017. European Commission. 2018. “2018 List of Actions for LGBTI Rights”, https:// ec.europa.eu/info/sites/info/files/aid_development_cooperation_fundamental_ rights/2018_lgbti_annual_report_final_web_3.pdf, accessed February 23, 2018. European Commission. 2020a. “EU LGBTIQ Equality Strategy”, https://ec.europa. eu/commission/presscorner/detail/en/ip_20_2068, accessed January 13, 2021. European Commission. 2020b. “How EU Law Is Developed”, https://ec.europa.eu/ info/law/law-making-process/planning-and-proposing-law_en, accessed January 13, 2020. European Parliament Briefing. 2018. “The Rights of LGBTI People in the EU”, http://www.europarl.europa.eu/EPRS/EPRS-Briefing-557011-Rights-LGBTIpeople-EU-FINAL.pdf, accessed April 23, 2017. European Parliament Briefing. 2020. “Promoting, Projecting and Protecting Europe’s Values in the World”, https://www.europarl.europa.eu/RegData/etudes/ BRIE/2020/652061/EPRS_BRI(2020)652061_EN.pdf, accessed January 13, 2021. Finnemore, Martha and Kathryn Sikkink. 1996. “International Norm Dynamics and Political Change.” International Organization 52 (4): 887–917. Fundamental Rights Agency. A Long Way to go for LGBTI Equality: Report. 2020. https://fra.europa.eu/en/publication/2020/eu-lgbti-survey-results, accessed May 12, 2021. ILGA Europe. “Report on the Implementation of the EU LGBTI Guidelines”, https://www.ilga-europe.org/sites/default/files/Attachments/report_on_the_ implementation_of_the_eu_lgbti_guidelines_2016.pdf, accessed November 3, 2017. International Observatory on Human Rights. “Poland’s ‘LGBT-Free Zones’ Pose an eerie Threat to Equality in Europe”, March 11, 2020, https://observatoryihr. org/blog/polands-lgbt-free-zones-pose-an-eerie-threat-to-equality-in-europe/, accessed January 13, 2021. Jenichen, Anne. 2020. “The Politics of Normative Power Europe: Norm Entrepreneurs and Contestation in the Making of EU External Human Rights Policy.” Journal of Common Market Studies: 1–17. https://doi.org/10.1111/jcms.13157.

66  LGBTI rights promotion within the EU Kelly Kollman. 2007. “Same-Sex Unions: The Globalization of an Idea.” International Studies Quarterly 51 (2): 329–357. Köttig, Michaela, Renate Bitzan, and Andrea Petö, eds. 2017. Gender and Far Right Politics in Europe. London: Palgrave. Kulpa, Robert and Joanna Mizielinska, eds. 2011. Decentering Western Sexualities: Central and Eastern European Perspectives. Ashgate: New York. Lantis, Jeffrey. 2017. “Theories of International Norm Contestation: Structure and Outcomes”, Oxford Research Encyclopedia Politics Online, https://doi. org/10.1093/acrefore/9780190228637.013.590, accessed May 12, 2021. Mos, Martijn. 2020. “The Anticipatory Politics of Homophobia.” East European Politics 36 (3): 395–416. https://doi.org/10.1080/21599165.2020.1733983. O’Dwyer, Conor. 2012. “Does the EU Help or Hinder Gay-Rights Movements in Post-communist Europe? The Case of Poland.” East European Politics 28 (4): 332–352. Pew Research. “The Global Divide on Homosexuality Persists”, June 25, 2020, https:// www.pewresearch.org/global/2020/06/25/global-divide-on-homosexualitypersists/, accessed January 13, 2021. Piketty, Thomas. 2019. Capital and Ideology. Boston, MA: Harvard University Press. Politico EU. “Juncker Seeks to Cement Social Pillar in Rome”, March 23, 2017, http://www.politico.eu/article/jean-claude-juncker-social-pillar-eu-identitycommission-welfare-policy/, accessed April 17, 2017. Politico EU. “Poland’s Ruling Party Plays the LGBTQ Card”, March 10, 2019, https://www.politico.eu/article/polands-law-and-justice-plays-the-lgbt-cardahead-of-elections/, accessed May 3, 2019. Politico EU. “Poland’s LGBTQ Community in the Political Crosshairs”, June 21, 2020, https://www.politico.eu/article/poland-lgbtq-community-in-the-politicalcrosshairs-elections-duda/? accessed December 11, 2020. Rao, Rahul. 2014. “The Locations of Homophobia.” London Review of International Law 2, (2): 169–199. Reuters. 2019, July 24. “Conservative Polish Magazine Issues LGBT-free Stickers”, https://www.reuters.com/article/us-poland-lgbt/conservative-polish-magazineissues-lgbt-free-zone-stickers-idUSKCN1UJ0HE, accessed November 15, 2020. Reuters. 2020, August 20. “Hungary’s Orban Calls for Central Europe to Unite around Christian Roots”, https://www.reuters.com/article/us-hungary-monument/ hungarys-orban-calls-for-central-europe-to-unite-around-christian-rootsidUSKBN25G0XS?il=0, accessed November 17, 2020. Risse-Kappen, Thomas. 1996. “Exploring the Nature of the Beast: International Relations Theory and Comparative Policy Analysis Meet the European Union.” Journal of Common Market Studies 34 (1): 53–80. Ruzza, Carlo. 2009. “Populism and Euroscepticism: Towards Uncivil Society?” Policy & Society 28 (1): 87–98. Sedelmeier, Ulrich and Frank Schimmelfennig. 2005. The Europeanization of Central- and Eastern Europe. Ithaca, NY: Cornell University Press. Szulc, Lukasz. “How LGBT Rights Became a Key Battleground in Poland’s Election”, EUROPP Blog, September 26, 2019, https://blogs.lse.ac.uk/europpblog/ 2019/09/26/how-lgbt-rights-have-become-a-key-battleground-in-polandselection, accessed November 17, 2020.

LGBTI rights promotion within the EU  67 Thiel, Markus. 2011. The Limits of Transnationalism: Collective Identities and EU Integration. New York: Palgrave. Thoreson, Ryan. 2014. Transnational LGBT Activism: Working for Sexual Rights Worldwide. Minneapolis: University of Minnesota Press. Torrisi, Claudia. “Persecuted beyond Borders: Why Italy Needs LGBT Refugee Shelters”, https://www.opendemocracy.net/5050/claudia-torrisi/persecuted-beyondborders-italy-lgbt-refugees? accessed November 21, 2017. Tremblay, Manon, David Paternotte, and Carol Johnson. 2011. The Lesbian and Gay Movement and the State: Comparative Insights into a Transformed Relationship. Burlington: Ashgate. Vasilev, George. 2016. “LGBT Recognition in EU Accession States: How Identification with Europe Enhances the Transformative Power of Discourse.” Review of International Studies: 42 (4): 1–25. Weber, Cynthia. 2016. Queer International Relations: Sovereignty, Sexuality and the Will to Knowledge. New York: Oxford University Press. Weiss, Meredith and Michael Bosia. 2013. Global Homophobia: States, Movements, and the Politics of Oppression. Urbana: University of Illinois Press. Wiener, Antje. 2015. “In the Eye of the Beholder: A Sociology of Knowledge Perspective on Norm Transfer.” Journal of European Integration 37: 211–228. Wiener, Antje. 2018. Contestation and Constitution of Norms in Global International Relations. Cambridge: Cambridge University Press. Wilkinson, Cai and Anthony Langlois. 2014. “Not Such an International Human Rights Norm? Local Resistance to LGBT Rights.” Journal of Human Rights 13 (3): 249–255. Woodward, Alison and Anna Van der Vleuten. 2014. Gender Equality Norms in Regional Governance. London: Palgrave.

4

Homophobia and EUrophobia in accession and neighborhood countries

Brussels thinking placed itself outside space and time, above geography and history. (Van Middelaar 2019: 70)

Introduction At the beginning of the new millennium, the EU considered its neighboring regions as part of a ‘wider Europe’ in an attempt to incentivize countries to emulate its liberal-democratic model. As the above quote tellingly illustrates with regards to the EU’s view of its neighbors, such an ideal-type transformation akin to the ‘end of history’ was an illusion based on the initial democratization successes of former Soviet-dominated countries following the end of the Cold War (Krastev and Holmes 2019). It also resonated particularly well with the EU’s normative self-image. As the previous chapter has shown, the EU’s internal LGBTI rights policy is less firmly established and recognized as a constitutive region-wide norm by its own member states, and its external promotion has led to conflict in recent years as well. This becomes apparent in the enlargement process, when candidate states undergo reforms in order to gain EU membership and are supposed to become socialized into rule-compliant states. A similar normative impetus is also heavily featured in the EU’s so-called neighborhood policy, which aims to support states bordering the region in their stabilization and democratization processes; though this policy lacks an explicit accession perspective. Using these two contrasting sets of EU foreign policies in two distinct regions (Accession candidates and Neighborhood countries) in terms of how they impact prevalent homophobia and the often-intertwined EUrophobia, that is, moral panics emerging over EU governance, I illustrate the normative challenges and point out the trade-offs that come with each policy. More recently, Islamophobia has appeared as yet another added grievance, especially in the context of the EU’s refugee management; thus, it will be treated here as part of a more generalized EUrophobia. Before doing so, however, a few background factors ought to provide the necessary cultural, economic, and societal contexts of candidate and neighborhood states. DOI: 10.4324/9781003054627-4

Homophobia and EUrophobia in neighborhood  69 In terms of these contextual factors, Graney (2019) highlights three as being decisive in her analysis of post-Soviet transformations: a Eurocentric-Orientalist differentiation between ‘superior’ Western states and ‘inferior’ Eastern ones, the emphasis on value commitments by the EU and other international organizations and the instrumental concerns of post-communist states related to sovereignty insecurities. All three contribute to a normative differentiation between the EU and its counterparts, and together, they combine to result in ambiguous LGBTI rights-related outcomes in terms of associating states with the EU. Within these two complex foreign policy frameworks, governments and EU institutions are important steering agents in the diplomatic exchanges that should eventually integrate candidate countries through EU enlargement and bind other regional neighbors more closely through the European Neighborhood Policy (ENP). These require a transformation and reconceptualization of a country’s sovereignty as will become evident throughout this chapter. Sovereignty, which is not a given constant but to some extent, a politically and discursively performed and as such recognized state attribute, is normatively enmeshed in both policies, as the following excerpt makes clear: Not only do we live in a world in which the territorial differentiation into distinct nation-states is being challenged by a functional differentiation into distinct issue areas, but we also live in a world in which the sovereign equality of states no longer constitutes the baseline for further stratification according to relative wealth and power. In this world, there are several normative frameworks competing for both legality and legitimacy when it comes to justifying political practices. (Bartelson 2006, 474) Sovereignty is therefore malleable, open to normative manipulation by state agents and linked to national constructions of culture and history. In addition, the EU challenges state’s sovereignty with its alleged ‘pink agenda’, whereby the stipulation of liberal sexual rights queers traditional sovereignty conceptions to create a “Euro-nationalist queer citizenship based on exclusionary membership of a transnational community” (Ammaturo 2015, 64). This potentiality, however, is seldom recognized by the EU or the countries it interacts with, leading to a reassertion, rather than a transcendence of sovereignty. Furthermore, the EU’s normative differentiation in these associative foreign policies leads to generalizing policies that often do not sufficiently acknowledge local realities and actors. When it comes to human rights policies as part of the required changes, the inclusion of civil society actors, as well as the broader public, is necessary. The so-called “Copenhagen Criteria”, established not coincidentally after the end of the Cold War in 1993, accordingly emphasize human and minority rights as well as democratic standards, with the EU as “gatekeeper of human rights empowered

70  Homophobia and EUrophobia in neighborhood to define what these are” (Butterfield 2016, 16). After 2000, the EU began to emphasize the importance of civil society in human rights and democratization matters in its neighborhood. This bottom-up engagement aims to ensure that legal and political LGBTI rights advances are more firmly embedded in societal structures so as to combat not only legal–political but also socio-cultural discrimination. Conceptually, civil society organizations (CSOs) constitute a significant intermediary force in the processes of societal norm diffusion and social learning about minority rights, broaden the pluralistic landscape of political participation, and contest controversial state policies (Thiel 2017). Ayoub (2015) highlights the centrality of SOGIbased CSOs involved in the EU’s transnational advocacy networks and the parallel increase in a state’s openness toward international norms. In postcommunist or post-colonial states, however, which constitute a large majority of accession candidates and neighboring states, civic organizations have less policy experience, are often heavily supported by West European CSOs or governments, and are more exposed to domestic governmental restrictions. According to O’Dwyer (2018), this not only politicizes LGBTI groups more easily but also provides an opportunity for agenda setting and growth through increased societal rights salience. To counter-act those pluralist strategies, government-organized NGOs called ‘GONGOs’ or religious actors in Central and Eastern Europe (CEE) are sometimes employed to contest LGBTI rights advances. These are juxtaposed to put up the façade of a pluralist if conservative counter-public to Western influences, as has been evidenced in Hungary, Croatia or Georgia. Moreover, in semi-authoritarian states in the neighborhood such as Egypt or Azerbaijan, governments put funding and registration-restrictions on CSOs to prevent dissent and potential foreign influence. In fact, the number of governments that restrict or put legal-administrative hurdles up for CSO activities has increased from 41 states in 2019 to 51 in 2020 worldwide (ILGA World 2020). CSOs, then, are essential but volatile norm-based actors, particularly in emerging issues such as LGBTI rights that require framing, mobilization, and governmental support. While there have been human rights advances in some CEE countries, which have been accomplished by supporting the pluralist public sphere structures and by adopting the most current anti-discrimination policies, the changes caused by EU influence have also led to homophobic and more generally, EU-phobic reactions. Homophobia can be defined as a general rejection of LGBTI friendly attitudes and policies (advocated by the EU), whereas the more diffuse EUrophobia, that is, skepticism over and fear of EU normative influence, is based on distrust of newly visible policies initiated by the process of closer association. Those two phenomena are often powerfully intertwined in a nationalist response, resulting in an overall refutation of the EU’s political stances. With the uptick in refugees and the security challenges posed by ISIS or Al-Qaeda attacks in Western Europe over the past decade, Islamophobia has become an additional reinforcing

Homophobia and EUrophobia in neighborhood  71

Figure 4.1 European Accession and Neighborhood States. Source: © European Union, 1995–2021, European Parliamentary Research Services (EPRS), https://www.europarl.europa.eu/RegData/etudes/IDAN/2016/595865/EPRS_IDA(2016) 595865_EN.pdf.

element of a generalized moral panic about the changing nature of states. The converging of Islamophobia and homophobia to an oppositional EUrophobia is not only based on common value-judgments denying the validity of rights for Muslims and LGBTI minorities. In the EU’s Southern and Eastern neighborhood, many states contend with national instability caused by security issues and domestic ethno-religious or political tensions. In addition, Russia’s countervailing illiberal influence in CEE and other neighboring countries reinforces the cultural and political insecurities created by European integration. In this context, it has been claimed that non-traditional SOGI goes against the prevailing heterosexual nationalism, diminishes the security of a country through ‘feminized weakness’, and opens it up to exploitation by politically instrumentalizing power holders (Mole 2016). Leaving these issue-centered details behind, the following sections sketch the EU’s two policies with respect to rights issues, concentrating on the linkage of EU policies with the discursive and performative factors present in contestations of the EU’s LGBTI and, to a lesser extent, Muslim refugee rights.

EU enlargement policy At first glance, the most successful case of the EU’s external LGBTI rights promotion represents its successive implementation in countries that aim to join the Union. Currently, the Balkan countries feature heavily as Albania, North Macedonia, Montenegro, Serbia, and Turkey are official candidate states (Bosnia and Herzegovina and Kosovo are still under consideration to receive candidate status as of early 2021, see Figure 4.1). In these cases,

72  Homophobia and EUrophobia in neighborhood the accession criteria clearly specify a respect for fundamental and minority rights in the so-called ‘Copenhagen Criteria’, which prospective candidates need to heed. After an initial ‘Stabilization and Association Agreement’, each country is required to undergo reforms in a number of policy sectors to prove that it will eventually be able to adopt the EU’s body of rules and regulations (the so-called ‘acquis communautaire’ or common treaty framework). These reforms are monitored by the EU through annual progress reports, to which influential transnational CSOs such as ILGA-Europe, in collaboration with domestic LGBTI rights groups in the countries concerned, contribute with their own findings and recommendations. Among the currently 35 policy chapters under negotiation, the chapter on ‘Judiciary and Fundamental Rights’ is relevant for this discussion, as it deals with rules and institutions that guarantee access to justice and the maintenance of fundamental, meaning EU-specific, human rights. According to Huszka (2018), the inclusion of such a rights chapter in enlargement negotiations in the recent past has signified an upgrade in terms of human rights considerations being part of the process. Moreover, rights issues are raised at an early stage of negotiations (353), thus making them important political benchmarks before more technocratic reforms are considered. The nominal attainment of such rights often occurs in the form of legislative or policy changes concerning antidiscrimination. The incentive for this policy change is eventual EU membership, once certain reform thresholds have been verified and approved by EU institutions. Yet, EU conditionality to incentivize and pressure non-member states into compliance comes with resulting complications: first, EU conditionality has been viewed as establishing an unequal relationship between the EU and third countries; second, the EU has attempted to superimpose its conditions on third states; a ‘top-down’, ‘one size fits all’ approach that did not involve the active participation of the native civil societies and which did not take in to account the diverse social, political, cultural and economic conditions facing third countries, nor their competing values, nor their lack of capacity or willingness to absorb the EU values; third, the ambiguous nature of ‘rights’ and ‘values’ and the potential conflicts between them have contributed to EU policy incoherence, lack of credibility, and the perpetuation of the ‘moving target’ problem. (Stivachtis 2021, 10) Although EU enlargement policy is not one single policy but individualized with country plans, it still engenders many of the above-referenced problems as will be further detailed below. Slootmaeckers et al. (2016) illustrate how this forced adaptation to EU rules is generative of symbolic politics on the side of the EU, which judges states to be ready for accession, as well as for candidate states, which experience a politicization of LGBTI rights in the process. Time and time again, one can see what I call a superficial

Homophobia and EUrophobia in neighborhood  73 ‘Potemkin’-style adaptation to EU demands through the passing of contentious and sometimes, reversible anti-discrimination legislation. Such adoption was initially quickly passed in a bipartisan manner in North Macedonia, for instance, only to be invalidated with the justification that it had been passed with an insufficient number of parliamentary votes. It had to be re-adopted the following year, albeit with greater politicization of the issue (Marusic 2020). Aside from these specific human rights stipulations, a broader conditionality is recognizable in which countries are supplied with financial incentives, closer ties, and market access through trade or visa liberalization when following the EU’s normatively imbued reform pressures (Schimmelfennig 2009). One would expect the EU to follow such logic stringently so that steps toward the fulfillment of conditions are consistently rewarded and non-compliance sanctioned, as sanctions by international organizations seem to be an expedient way for member governments to avoid bilateral state tensions. Yet, in the case of Balkan candidate states, such as Serbia, the country “received the promised rewards even though it failed to meet fundamental human rights requirements set by the EU” (Huszka 2018, 353). This selective application indicates overriding geopolitical rationales: in this case, to bind Serbia closer to the EU in view of Russia’s competing engagement and, more broadly, to stabilize the largest of the Balkan candidate states. A minor visibility-related factor in favor of Serbia’s EU approval may be the longstanding presence of lesbian Prime Minister Ana Brnabic, who lives with her partner and child in a domestically unrecognized partnership. She has done little to advance LGBTI rights in the country herself, but may be viewed by the EU as indicative of tolerance toward ‘out’ politicians. As a result, mixed signals about the application of EU norms to the countries in question are sent, at a time when the EU has significant leverage over these aspiring states. A more subtle issue in the accession process rests with the required taking on of Western rights norms that diminish local and national experiences and lead to unintended consequences in terms of homo- as well as EUrophobia as will be pointed out below. Given the EU’s accession blueprint that foregrounds legal-administrative reforms without sufficiently acknowledging the contextual repercussions, the enlargement process simultaneously implies the triumph of rejoining Europe combined with the trauma of having to go through a triple institutional, economic, and cultural transformation (Agh 2020). Once states have at least nominally implemented the required reforms and officially joined the EU, reforms slow down and states may even experience democratic backsliding, that is, a deterioration of liberal-democratic governance standards. After the falling away of EU conditionality, domestic elites’ lack of internalized liberal values with coinciding patterns of populist competition, socio-economic frustrations of the outcome of transition to democracy and EU accession, and geopolitical influence by Russia compromise democratic consolidation. These patterns also indicate a tradeoff between political stability and the quality of democracy (Cianetti et al. 2018). This is reflected in

74  Homophobia and EUrophobia in neighborhood the Sustainable Governance Index measuring EU and OECD states, where most of the CEE states show a regression in the quality of democracy, with the bottom three consisting of newer EU members or candidate states (see below1). According to the Economist’s Democracy Survey, Turkey has similarly deteriorated in democratic standards and moved from 5.7 (on a 1–10 scale) in 2006 to 4 in 2020. The other Balkan enlargement candidates declined as well, but only up to one point from an initially higher starting point of around 6.5 (Economist Intelligence Unit 2020). Given that all of them have been candidate countries for over five years, the transformative quality of EU enlargement conditionality thus becomes questionable (Figure 4.2). More specifically, candidates and newly accessed states may opt to fall back on more regressive, homophobic legislation, for example, through popular referenda that preventatively impose rights barriers as occurred in Croatia in 2013. Shortly after EU accession, a majority in a low-turnout referendum adopted a heterosexual marriage definition based on EUrelated but also internal ethno-religious issues (Slootmaeckers and Sircar 2014). Similarly, a reaffirmation of a constitutional same-sex marriage prohibition was planned in Romania in 2018. A CJEU ruling that Romania had to accept same-sex marriage certificates from other states provided a platform for homophobic politicians to host a referendum that would constitutionally deny marriage rights to partners of the same sex, which, if passed, would have setup a conflict between the EU’s highest court and the Romanian government. It failed because of a lack of popular turnout, with proponents and the opposition similarly connecting this case to the EU’s progressive policy stance on this issue (Politico EU 2018). In yet another telling example, Poland’s ruling Law & Justice Party has made LGBTI rights a major point of contention in the run up to the general elections of 2020. Politicizing the EU’s emphasis on minority rights, the party’s leader stated at the annual party convention that EU membership was “the shortest way for Poland to achieve parity when it comes to living standards […] but that doesn’t mean we should repeat the mistakes of the West and become infected with social diseases that dominate there” (Reuters 2018). In all of these episodes, churches and conservative CSOs are significant actors that aim to mobilize voters against the EU’s progressive stance on LGBTI issues (Ciobanu 2017). This goes hand in hand with regional Islamophobic disengagement from a common EU response to the refugee crisis, a general tendency toward highlighting ‘natural families’ in the face of demographic decline, and a resulting increase in nativist Euroscepticism, which are analyzed below. With EU membership, the conditional pressure to reform evaporates and countries revert to more sovereigntist positions. Unless a judicial fundamental rights case can be logged at the EU’s Court of Justice, there is little the bloc can do aside from public peer pressure and formal inquiries. This has led to the recent adoption of EU-internal rule-of-law monitoring and funding conditionality, which in turn has been highly contested by CEE states and has yet to come into practice (see the concluding chapter).

Homophobia and EUrophobia in neighborhood  75

Figure 4.2 Quality of Democracy Index, 2014–2020, Bertelsmann Foundation. Source: Bertelsmann Stiftung, Sustainable Governance Indicators 2020, Quality of Democracy, https://www.sgi-network.org/2020/Democracy/Quality_of_Democracy.

76  Homophobia and EUrophobia in neighborhood Aside from the unfulfilled promises of EU-led transformation, it is essential to recognize that the historical SOGI context in CEE countries is quite different from the norm-promoting Western European states. Based on the various LGBTI (de)criminalization histories during the Communist era in CEE countries, it is difficult to make generalizations about the constitutive influence of communism on SOGI attitudes nowadays. For instance, whereas Bulgaria and Romania adopted previously existing draconic laws after the Cold War ended, Poland and Czechoslovakia have implemented more liberal ones. The common post-communist experiences, however, are said to impress somewhat uniformly on them: Kulpa (2011) describes how the modernization trajectory manifested itself after the fall of communism, leading to a devaluation and disregard of previously inhabited social, political, and economic structures. Such displacement now seems to have returned to haunt the EU: The hegemonic position of the ‘West’ in its supposed ‘advancement’ is taken for granted, a trajectory of modernist civilisation set up. All Eastern Europe needs to do is to ‘catch up’ with Western modernity, with the gracious help of the ‘West’. (46) More specifically, Bilić (2016) compares the EU’s ‘infantilizing’ approach to its Balkan candidate states with its colonial past, which tends to produce power differentials and distinctions that erase local experiences and relegate those states to backward policy-takers. He acknowledges that the postYugoslav space is composed of a unique set of countries that, based on their conflictive history, often uncritically invoke ‘Europe’ as “a panacea for the region’s multiple ills” (12). This creates illusionary hopes but also EUdivergent patterns for the Balkan countries’ experience of Euro-, homo-, and Islamophobia (the latter particularly important because of the significant Muslim populations living there). The previous integration of Warsaw-Pact states into the EU created a more recent distinction of CEE countries, with the latter striving for closer association with Western Europe while simultaneously rejecting some EU policies. This left an ambiguous imprint on European’s perceptions on the success of previous enlargements, with selected majorities in Western European states unsatisfied with the accession of Bulgaria, Romania, and Hungary, while also being against future EU enlargements to Turkey, Albania, Kosovo, and Serbia (YouGov Eurotrack Survey 2019). Another underlying factor in this destabilizing process of Eurocentric integration of CEE countries consists of the way in which post-communist economic liberalization has played out. Given the drastic transformations in labor markets, the domination of most CEE countries’ markets by foreign, often West European-based companies, and the uneven economic development within and among countries, even non-economic EU discourses

Homophobia and EUrophobia in neighborhood  77 are equated with the hegemonic position of ‘the West’ and thus admonished. The contested conditioning of minority rights provisions on the question of accession to the EU’s free trade market for Ukraine in 2015 is a telling example. Moreover, the longstanding reliance of new member states on regional aid by the EU as well as the use of CEE countries as low-wage subsidiary markets by West European companies reinforce residual inequities in the socio-economic relations between East and Western Europe. Further adding to this unevenness is the fact that governments in the region all too easily exploit economic and political frustration by highlighting nationalist protective and populist ideas. Another contributing factor causes further friction among EU states: many EU member states in Western Europe recruited Muslim labor migrants after the Second World War to rebuild Europe. Historically, many Balkan countries were part of the Ottoman Empire. These historical blind spots, combined with the more recent Al-Qaeda and ISIS attacks and the sudden influx of refugees after the Arab Spring and the outbreak of the Syrian Civil War, gave rise to widespread Islamophobia across Europe. With regards to the already existing ethno-religious minorities present in (Western) Europe, Mepschen and Duyvenak (2012) argue that these are domestically outcast as homophobe migrant outsiders. In many CEE EU members or candidate states, which in fact have low levels of Muslim residents and even lower levels of Muslim refugees, Islamophobia is on the one hand based on the rejection of Western European diplomatic overtures. These seem to oscillate between incentivizing refugee intakes and sanctioning non-compliance in a ‘carrots & sticks’ type of policy pressure. On the other hand, these countries’ strong historical linkage to Catholic and Orthodox Christianity is conveniently exploited by some incumbent governments for religious chauvinism, from the Baltics to Hungary. This revisionist false equivalence mirrors Puar’s (2007) notion of homonationalism, especially in terms of the way in which sexual and racial exclusion create a reifying pattern of assumed national Christian identities, with churches playing a leading role. These tendentiously include sexual and ethnic minorities in Western Europe, but exclude them in most of the CEE states. In the specific case of CEE countries, the relative lack of LGBTI tolerance combined with the absence of (Muslim) refugee acceptance mutually reinforce the rejection of perceived regulatory norms and the creation of nativist ideals. Turkey is somewhat of an exceptional EU candidate, in that, as a majority Muslim country, it agreed to a refugee swap deal with the EU in 2016 and has set up refugee camps for almost 4 million (mostly Syrian) refugees. At the same time, its government has used EU funds that were part of this agreement to build a wall with Syria and buy equipment to keep out more refugees (Sentek and Arsu 2018). Turkey became an accession candidate in 1999, but a lack of incentivizing engagement by the EU over the years, coupled with increasing authoritarianism by its President Erdogan who has been in power since 2003, have diminished democratic reforms. According

78  Homophobia and EUrophobia in neighborhood to most observers, Turkey is not expected to become an EU member unlike fellow Muslim-majority candidate state Albania. Rather, it serves predominantly as an outsourcing location for unwanted refugees as well as a source of Islamophobic worries across the EU based on its population size and increasing government-led Islamization. Moreover, many LGBTI refugees from other Middle Eastern conflict states end up in Turkey and are confronted there with an increase in government-advocated homophobia (Muehlenhoff 2019). As a result, in 2019, the EU’s enlargement progress reports considered formally suspending the accession negotiations with Turkey in light of multiple human rights violations, specifically of LGBTI people, while Albania and North Macedonia have appeared to make progress in that area. Given Turkey’s refugee deal with the EU, it is unlikely that human rights considerations outweigh the EU’s geostrategic need for the country. It continues to remain a laggard candidate with the worst LGBTI record among European countries, and the second worst of all 49 countries measured in ILGA-Europe’s Rainbow Index. Aside from the EU’s tepid reaction, Turkish developments need to be viewed within the broader context of President Erdogan’s move toward a presidential, autocratic system replete with a high-visibility singling out of LGBTI individuals, next to its traditional domestic opposition, the Kurds. At the same time, references to the religious prohibition of non-traditional sexualities in Orthodox and Catholic candidate states gloss over differently configured historical periods equally and flatten diverse and fluid sexual behaviors in those countries to a form of ‘national heterosexuality’. The latter becomes even more pressing as almost all CEE countries, even more so than most Western EU member states, have been in demographic decline (see Figure 4.3; note that the ‘Southern Europe’ region is half made up of CEE states). In such a socio-political environment, governments tend to emphasize the value of traditional-reproductive family models while at the same time rejecting alternative forms of sexuality and gender that may not be considered reproductive, such as LGBTI. In the early 2000s, Russia’s President Putin stated his goal to halt the Russian demographic decline and introduced additional incentives for would-be mothers, while at the same time vilifying homosexuality and introducing discriminatory SOGI laws. Many post-communist states followed suit and developed family support policy strategies as well. The ones who could afford it or saw it as a preeminent issue also introduced various forms of financial incentives, for example, Russia in 2007, Hungary in 2011, Poland in 2016, and most recently, in 2018, Serbia. Serbia, one of the top ten countries with highest population loss globally and, aside from Turkey, the largest EU candidate state, is also planning to introduce regular child payments in order to stave off the decline. The announcement of this policy has been criticized by Serbian women’s groups as incentivizing ‘birth machines’, with the intent to create more soldiers. Scholarly critics hinted at the fact that comparable programs in smaller neighboring states have yet to show results, and that

Homophobia and EUrophobia in neighborhood  79 with accession to the EU, pro-natal policies have become largely irrelevant as outward migration to Western EU states increases (Simic 2018). More problematically, countries such as Poland or Croatia have started to delimit access to abortions, instigated by far-right parties and movements. In order to forestall a weakening of its traditional sphere of influence, Putin’s government, despite its historically antagonistic role in the region, has reached out to CEE states in an attempt to “outsource autocratic antiLGBTI soft power” (Bonny 2019) through the ‘World Congress of Families’ funded jointly by Russian and U.S.-based conservatives. Based on high-level governmental network exchanges between Russia and Hungary, in 2019, Hungary’s anti-migrant, conservative Prime Minister Orban announced an expansion of family benefits that dramatically increases with each newborn child. Stating that, while in Western Europe, immigration may be viewed as a solution to demographic issues, he prefers to see more Hungarian offspring as “only Hungarians can replace Hungarians” (Reuters 2019). Despite these perceived pro-natalist policies, given limited resources, the focus on these actually has led to a narrowing of family policies in Hungary to exclude non-conventional families (Kovats 2020).

Figure 4.3 Decline of European Populations According to Sub-region, Pew Research. Source: “Refugee surge brings youth to an aging Europe”, Pew Research Center, Washington, D.C. (October 8, 2015) https://www.pewresearch.org/fact-tank/2015/10/08/refugee-surge-brings-youthto-an-aging-europe/.

80  Homophobia and EUrophobia in neighborhood

Figure 4.4 Muslim Populations in EU States and Projected Growth Scenarios, Pew Research. Source: “Europe’s Growing Muslim Population” Pew Research Center, Washington, D.C. (November 29, 2017) https://www.pewresearch.org/fact-tank/2017/11/29/5-facts-about-themuslim-population-in-europe/.

Adding to this, LGBTI populations are perceived of demographically noncontributing elements of society. Even if they have children, they are accused of upsetting the ‘natural’ gender-based family order, which becomes

Homophobia and EUrophobia in neighborhood  81 a more contentious issue with demographic decline. While the EU, as well as advocacy organizations such as ILGA-Europe, has increasingly advocated for the framing of LGBTI partnership rights as a family issue, this argument seems more effective in Western Europe despite representing a somewhat conservative, heteronormative case for inclusion that could resonate in CEE states. At the same time, states also refuse potentially mitigating solutions such as taking in Muslim migrants and refugees in order to attain a net population increase, policies which many Western European countries are considering. Islamophobia in this case is couched in alleged threats to security that Muslim migrants and refugees bring with them, and the fear of Europe turning, based on often incorrectly estimated demographic growth projection of Muslims, into a Muslim-majority ‘Eurabia’. Both of these topics are popularized in tabloid media and public discourse, but not substantiated by actual events, at least not to the extent that could approximate reality – see Figure 4.4. Pew Research estimated that, with the current migrant influx, the 5% number will double, and even with a high migration scenario, it will triple to only 15% by 2050 (Pew Research 2017). Openness toward Muslim immigration is also viewed as being incompatible with prevailing religious beliefs of a Catholic, Protestant, or Orthodox nature and a corresponding negation of the historic Muslim presence in the Balkan states. Whereas, in the past, basic commonalities remained between Western and CEE countries in this area – though with marked differences in the post-war era in terms of overall religiosity in that the West remained more secular – the acceptance of Muslim migrants and, more recently, refugees, has further delinked CEE states from common European rights norms. Even in West European countries, we have seen the topic of Islam reach unprecedented prominence, for example, in the rise of the European xenophobic extremist parties, which dispute that Islam belongs to Europe. This bifurcation became more evident after proposals circulated among EU leaders in 2015 favored by the ones in the West such as German chancellor Merkel, to sanction EU member states who do not take in their share of Syrian and other refugees. Taken together, homophobia is a driving force that is linked to interventionist pressure, perceived as preventing nativist population replacement strategies. Just like Islamophobia, it is an expression of the rejection of foreign ideas in an attempt to preserve national cultural ‘purity’ and political sovereignty. In this vein, Europhobia, Islamophobia, and homophobia are interconnected and reinforce anti-European sentiments during a time of transformative exposure to the EU. In candidate states with a majority Muslim population such as Albania or Bosnia, Islamic belief structures tend to reinforce homophobia just as churches do in predominantly Christian CEE states. Swimelar (2016) highlights how Bosnian Muslims attacked the Queer Sarajevo Festival in 2008 and how religion and nationalism provide powerful resistance to perceived foreign norms considered offensive or threatening to already volatile states.

82  Homophobia and EUrophobia in neighborhood Although, in recent years, there has been a slight improvement in LGBTI visibility and protection in the region, this advance appears to remain on the political elite level with little diffusion to the larger population. In her work on Croatia, Butterfield (2016) details how, in the country’s pre- enlargement state, a process of CSO professionalization was set into motion, resulting in often pressured and accelerated legal changes in LGBTI policies without a requisite social and normative transformation in society. The ensuing consequence was that large bottom-up counter-mobilization by conservative groups such as ‘In the name of the Family’ was able to produce a counterproductive referendum. It subsequently led to the prohibition of constitutionally sanctioned same-sex relations under the disguise of a threat to the traditional family model. Examples such as this highlight that normative changes need to evolve organically and be accepted from the bottom-up so that along with a political–legal, a more thorough transformative societal change can take place. In contrast, a top-down and often rapid conditional diffusion of policies remains on the surface, with no substantive normative change located in domestic political culture. Bilić (2016) goes as far as to argue that, in the process of rapprochement between the EU and third countries, a new artificial ‘intermestic’ (international-domestic) public elite, supported by the EU, advances from local concerns disconnected LGBT rights agenda in a paternalistic manner (234). Comparing Croatia’s and Serbia’s identification with Europe, Vasilev (2016) posits that Croatia’s stronger identification with generalized European ideals has facilitated its apparent but slow improvement in LGBTI rights, while a lack of such identity has prevented Serbia from following through on its accession-required rights commitments. Aside from showing that one ought to be cognizant of sub-regional national differences, that is, not all enlargement candidates are responding similarly to EU conditions, Vasilev’s claims may overgeneralize the stability of a country’s or governmental decision-makers’ identities given the subsequent homophobe referendum in Croatia. More critically, Rexhepi (2016) highlights that, in a Muslim-majority context, such as in Kosovo, the EU used LGBTI rights to construct Muslim communities there as backwards and intolerant, while naturalizing the EU’s self-idealized status as modern liberal agent, without a deeper concern for the real-lived experiences of LGBTI individuals there: The EU does not really seem to be concerned about the rights of the LGBT communities in Kosovo; it is concerned about policing the symbolic borders of the space of the EU, and utilizing its power to construct and maintain an image of Europe as multicultural, tolerant and secular. This form of pinkwashing, or what I call ‘EU-washing’, constitutes a new mode of Orientalist and Islamophobic discourse from a transnational-securitized neocolonial order. (49)

Homophobia and EUrophobia in neighborhood  83 Here, the EU is actually being portrayed as an Islamophobe actor itself, in the way it others longstanding local cultures. Populist politicians in Hungary, Spain, or Germany have simultaneously decried the EU’s liberal stance on LGBTI rights and immigration, while portraying their refusal as a defense of Europe from moral decay and racial mixing. In an ironic twist, they use a ‘liberationist’ rhetoric that aims at freedom from the EU’s liberal diktat while at the same time supporting more authoritarian objectives that often hark back to some allegedly better period. Independent of the truth value of these postulates, one can see how in the multi-ethnic, complex religious, and social orders of accession countries, the EU will invariably be perceived as not supporting some groups or issues enough, while supporting others too strongly. It becomes obvious how even with strong incentives such as accession, the success of LGBTI rights norm diffusion is at times rather limited to legal adaptation, with fears about the changing nature of society and economy, and demographics (in terms of native decline and foreign immigration) inhibiting a more resounding and sustainable transformation.

European neighborhood policy (ENP) In countries in the EU’s so-called ‘neighborhood’, where the accession perspective remains distant, the EU’s leverage over policy creation and reform diminishes even more. These diverse countries ranging from Belarus to Morocco already feel that they have been distanced from the EU by not being included as potential member states. The ENP came into existence in 2004 to provide states in the adjoining region that were not considered potential future members, such as Georgia or Egypt, with an elevated partner status and comprehensive aid. It explicitly includes a commitment to human rights and gender equality in order for states to receive this special status. The ENP contains two different regional groupings for a total of 16 countries, with the Southern and Eastern Mediterranean ones ranging from Morocco to Jordan as well as six countries in Eastern Europe and the Caucasus (Armenia, Azerbaijan, Belarus, Georgia, the Republic of Moldova, and Ukraine) that are subsumed under the EU’s ‘Eastern Partnership’ (see Figure 4.1 above). Theoretically, a closer collaboration is envisioned between the bloc and the six Eastern countries whose focus is on intensified trade and security relations. Notably, the Mediterranean countries have Muslim majorities, whereas the Eastern states are mostly Orthodox Christian. While they all display different forms of religiously or culturally based homophobia, they vary distinctively in terms of Islamophobia and their rejection of EUpropagated norms. At a fundamental governance level, one could argue that the EU’s ENP should have improved the quality of democracy with its multisectoral policy as well as normative objectives. The Economist’s Intelligence Unit tracked the quality of democracy over time from 2006 to 2019, which approximates the length of the ENP in existence, on a 1 = worst to 10 = best scale. In it,

84  Homophobia and EUrophobia in neighborhood the so-called Southern Mediterranean ENP members, ranging from Morocco to Syria, mostly remained stagnant and, in few cases, improved (e.g. in Algeria) or deteriorated (e.g. in Egypt or Lebanon) only slightly. The outliers were Tunisia with an improvement of over three points reaching 6.72 in 2019 and Syria which decreased substantially from an already low starting position of 2.36. Both of these changes are, however, unrelated to the EU’s influence and are in large part based on the repercussions emerging from the Arab Spring and the Syrian Civil War, respectively. Furthermore, in four of the six Eastern Partnership states, the quality of democracy declined. Only in Georgia and Armenia, the indicators improved slightly by about one point (Economist Intelligence Unit 2020). Hence they illustrate the relative lack of progress or, alternatively, the minimal influence of membership in the EU’s neighborhood policy framework. In order to obtain a more fine-grained analysis, a look at the state of LGBTI rights in the ENP region is useful. Despite monetary aid and partial visa liberalization, no sufficient incentives in exchange for trade or aid concessions exist in either ENP sub-region. As a result, reforms in terms of LGBTI rights are rather slow or completely lacking, as Neighborhood Policy and Eastern Partnership review reports have shown (Bentzen and Przetacznik 2020). The two biggest fund recipients are crisis-shaken Ukraine and the migration hotspot Morocco, indicating that geopolitical imperatives may outweigh the consistent application of any type of conditionality. Even Belarus continues to receive funds, though a large part has been redirected to CSOs there, and a review of bilateral relations is ongoing after the government’s illegitimate re-election in 2020. The juxtaposition of the EU’s signature foreign policies’ strategic outcomes illustrates the dilemma the EU faces when incentivizing LGBTI rights in a conditional manner: while in the enlargement process, normative adaptation to EU rules can occur in a superficial or ‘thin’ manner that can be reversed, the EU’s reach in its ‘neighborhood’ is curtailed by its incapacity to normatively engage these countries. In the latter, domestic instability and insecurity is fueled by competing geopolitical tactics propagated by Russia (in the Eastern partnership) or ethnoreligious actors (in the Southern Mediterranean region). The Kremlin still imprints on the EU’s Eastern partners in political and economic terms and collaborates with the EU on technical and trade terms, while rejecting calls for political and human rights reforms (Headley 2015). Moreover, it exerts transnational influence through the societally important Russian Orthodox Church which is the dominant church in all Eastern Partnership countries. Across the Southern and Eastern Mediterranean, Islamist parties constitute political strongholds that have an ambiguous relationship with the EU. In 2013, the EU’s foreign diplomatic service EEAS developed binding guidelines to protect LGBTI human rights in its foreign policy interactions. These were based on the 2012 strategic framework for external democracy and human rights promotion and an earlier toolkit to promote LGBT human rights. Moreover, the European Council has allocated a part of its civil

Homophobia and EUrophobia in neighborhood  85 society funding of the European Instrument for Democracy and Human Rights specifically for CSOs working on these issues. Most of the CSOs in ENP states receive funding from this financing instrument, while their governments are in dialog with the respective EU delegations in their capitals. They are offered limited incentives through Association Agreements including visa liberalization or closer market association in return for political and human rights reforms in a ‘more for more’ strategy. Despite these multi-pronged approaches toward ENP countries, the results are often limited due to existing societal and political forces in those countries that prevent greater LGBTI rights promotion, as Kennedy (2016) has shown when examining corresponding challenges in the Eastern Partnership countries. Homophobia manifests differently in ENP partner countries, depending on the cultural context: in Southern and Eastern Mediterranean countries, homosexuality is an issue that was somewhat protected by its anonymity and indigenous fluidity but that has become more pressing with increased international attention and the strengthening of conservative Muslim factions (Amar 2013). In the Eastern countries, alternative sexual and gender expressions are more consistently viewed as going against communal and religious orders. After the fall of communism, there seemed to be a window of opportunity to refashion socio-cultural models, but the rapprochement between the sexually repressive churches and governments in the region, which tend to use homophobia as a manipulative state strategy, has led to increased contestation of Western liberal attitudes. The European Social Survey, for instance, has found a drop in acceptance of homosexuality over a five-year period, 2010–2015, in countries ranging from Slovakia to Ukraine (European Social Survey 2015), despite the EU’s agreement stipulations and pressure to improve on those terms. EU membership itself does however make a legal–political difference: while most of these countries have decriminalized homosexuality nominally, employment discrimination legislation and hate crimes prohibitions have only been established in CEE states that are EU members. The sole exception these added protections is Ukraine where a hard-fought battle by the EU for the inclusion of this provision took place during the negotiations for Ukraine’s visa liberalization scheme. Shevtsova (2020) attests that “with its conditionality politics concerning minorities’ rights, the EU unintentionally contributed to the centrality of the topic of LGBTI rights within a Ukrainian political debate surrounding approximation with the EU vs. customs union with Russia” (5). In line with some of the above-made arguments, she posits that, in Ukraine, it was not so much EU influence, but rather, a geostrategic alignment against Russia that led to limited tolerance provisions. As the EU raises the profiles of sexual and gender minorities in its conditional engagement in ENP countries, SOGI issues are more significantly politicized. Russia has taken note of the elevated neighborhood status of countries on its border and has moved strategically to denounce ‘decadent Western LGBTI rights’, using media, churches, and CSOs (The Economist 2015) as the EU aims to bring these countries

86  Homophobia and EUrophobia in neighborhood closer to its sphere of influence. The application of ENP policies and human rights and democracy conditions remains incoherently assessed and prioritized in these countries: the EU seems to have provided visa liberalization to countries like Georgia, Moldova, and Ukraine which have made only limited progress on LGBTI rights as EU monitoring reports continue to attest because they are geopolitically critical. Despite the successful call of ILGA-Europe or the European Parliament for the explicit inclusion of LGBTI rights as conditioning principles during the 2015 ENP review, no improvements in terms of consequent monitoring were made. For the Southern Mediterranean ENP partners, LGBTI and, more generally, human rights were initially not a major focus given the difficult cultural and political environments. They have been further sidelined by the Arab Spring uprisings and the ensuing government crises, when other pressing stability issues, along with human rights concerns, for example, for political prisoners or dissidents, were added to the list of priorities in bilateral exchanges. The EU initially conceived of the aim of ‘deep democracy’ in the countries to the South, all the while prioritizing the stability of economic and particularly, security relations from Morocco to Egypt. This emphasis emerged because it was assumed that if the EU could not deliver the expected ‘3Ms: money, markets and mobility’, then, democratic reforms or more funding incentives for an expansion of human rights would be moot (Duke 2013). Just as in the overriding geostrategic motive in the Serbian case for enlargement, more stable or receptive governments such as Tunisia or Morocco were positively evaluated by the EEAS or the European Parliament in view of the region’s more unstable countries. And this despite acknowledging a lack of significant progress on LGBT and women’s rights across the board. More generally, the EU’s limited understanding of and selective engagement with Islamist parties in the region has led to a pragmatic but only partial engagement of more moderate, EU-like parties (Voltolini and Colombo 2018). As others have posited, this position was taken because of the geopolitical imperative and also because even after the Arab Spring, “human rights and democracy have played a relatively small role in the supposedly new approach to bilateral relations between the EU and the Southern Mediterranean, in spite of the ambitious rhetoric enshrined in the official documents coming from Brussels” (Gomez and Nogal 2017, 4). In the same way that such cherry-picking of favorable countries and issues of concern remain problematic, the lack of differentiation among ENP country targets is similarly criticized: As a framework policy addressing 16 different countries, the ENP suffers from the diverse prioritization EU member states have towards individual countries; and the different sensitivities are not just about the prioritization of issues (trade, energy, security), but also about the importance of human rights. (Balfour 2017, 343)

Homophobia and EUrophobia in neighborhood  87 In terms of Islamophobia, the abovementioned distinction of its Southern & Eastern Mediterranean sub-grouping – the source of many of the EU’s migrants and refugees – and the Eastern Partnership countries, which reject those, contributes to a possibly insurmountable tension in the overall ENP conceptualization. As a recent human rights research project clearly stated, “the migration aspect of the Neighborhood Policy has been mostly driven by the aspiration to keep migrants away from the EU rather than by concerns for the human rights of migrants” (FRAME 2014, 5), reflecting the discrepancy between the EU’s values and its geostrategic interests. In this research report, it is also noted that ‘vulnerable groups’ are referenced by the EU, without specifying to which groups it refers. The recent experience of Europeans becoming ISIS recruits, some EU governments’ resistance to acknowledge Muslims as integral to European societies, and border control issues have further led to allegations of Islamophobia among EU states. These allegations have become more pronounced in light of increasing accountability pressures on both sides of the Mediterranean and have created a polarized discourse open to manipulation. In sum, similar to EU-internal discrepancies, the ENP is plagued by the inconsistent development and application of normative and strategic objectives, which has even been critically noted by the former Secretary General of the EU’s diplomatic External Action Service: Procedures are put forward, principles are announced, instruments are developed but all of this gives the impression of floating in a political and strategic vacuum from which all power dynamics, antagonisms and lines of division between nations have been sucked out. (Vimont 2016, 102) Together with the inability to adequately take into account the competing role of geopolitical or ethno-religious actors, the ENP has not proven conducive to the promotion of LGBTI rights, or human rights for that matter, and is in need of a critical review and reformulation by the EU.

Conclusion The coupling of enlargement candidates’ adversely perceived reform policies with a conditional logic by the EU results in the alignment of homophobia, and to a lesser extent, Islamophobia, into a broader EUrophobia. This confluence of moral panics engenders populist counter-reactions in the pursuit of socio-political stability and sovereignty-minded autonomy. As some of the cases described above have shown, Europe is then often framed as feminized in its emphasis on human and LGBTI rights and thus considered weak in order to highlight the masculine national supremacy over it. Similar feminized and Islamophobic descriptions of the EU’s influence on the UK occurred during the polemic Brexit debates, indicating the modular

88  Homophobia and EUrophobia in neighborhood performativity of such imaginary tropes. When considering the linkage between these various fears, it is essential to understand the former two as figurative of the EU’s not always genuine nor consistent tolerance norms. Islamophobia plays a particularly ambivalent role as in some EU governments, but also in some Eurocentric LGBTI movements, a partial othering of Muslims is taking place that invariably extends to its characterization of Muslims in the neighborhood. The EU institutions and its member-state representatives seldom acknowledge, internally or in dealings with third countries, that their liberal stance on gay rights promotion coupled with domestic policies on the societal inclusion of Islamic individuals not only promotes such tolerance norms but also contributes to the creation of a binary of ‘enlightened Europe’ and ‘backward nativist neighborhood’. Affected countries are therefore exposed to manipulation by proponents of neotraditional ‘retrotopias’ (Bauman 2017), which hark back to an idealized past. The EU inserts itself through its policy advances in ways that seem to negate the conflictual and complex war- or colonialization-related past, and spatially removed present, of many of these states, while promoting Western-informed CSOs and policies. Together with the rather distant European ideals in the domestic settings of candidate and neighborhood countries, the overly visible LGBTI rights promotion agenda designed topdown, coupled with an ambivalent stance on Islam, leads other governments and CSOs to resist EU overtures. In the case of EU enlargement, they often reluctantly implement ‘Potemkin reforms’ that appear to satisfy EU institutions, but that can be reversed and seldom lead to a deeper domestic internalization of rights norms. The EU’s top court has moved to acknowledge LGBTI persecution as valid grounds for asylum, and the EU has now started to incentivize the intake of Muslim refugees by CEE states, but it is unlikely that financial incentives can overcome their rejection and the equation with security threats of some sort or another. Alternatively, in states such as Bulgaria, which has a sizeable Muslim minority, other IGOs such as the OSCE or the Council of Europe have started to provide visibility and support to combat hate crimes without an accompanying problematic conditionality. It becomes evident that normative tensions between religious and secular policy orientations remain when norms are connected to technical policies such as economic and visa-free market access, with the implicit desire of the EU to spread its normative model in a tit-for-tat incentivizing logic. In both, enlargement and neighborhood policies, larger geopolitical issues – from the overriding impetus of integrating the Balkan states despite their lack of reform, or the influence of the U.S. and Russia on homo – and Islamophobia in the regions present the EU with additional challenges that adversely impact the consistent application of norm- and incentive-based policies, as it reduces the policy choices available. A report by the German Heinrich Boell Stiftung on the topic of LGBTI rights in the Caucasus/Eastern partnership countries recommends that “the

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EU has to continue to follow a cautious and balanced as well as consistent and persuasive approach to achieve effectiveness. A public and conflictual approach, by contrast, might oftentimes be counterproductive” (Heinrich Böll Stiftung 2015: 13). Questions of conditional opening of policy negotiations surrounding the EU’s enlargement or neighborhood policies, and the highlighting of required Western-informed human rights prescriptions inclusive of LGBTI populations and Muslim refugees, have produced largely ineffectual policy responses and contrarian counter-narratives. If the EU is the more powerful partner in these policies and can afford to support domestic CSOs that are needed for a gradual transformation, then it has to reconsider the impact of its policies more strongly in order for its normative model to remain relevant. An initial step in that direction has been taken with the reform of the EU enlargement process, which will take into account more country-level expertise, rather than rely solely on EU Commission analysts, and will feature rule-of-law issues as fundamental criteria. Similarly, in 2020, the Neighborhood Policy has been integrated into the EU’s broader Neighborhood, Development and International Cooperation Instrument (NDICI).

Note 1 In order to triangulate data for such a complex measure as democracy, I cite a number of the most prominent democracy indicators throughout and present them side by side, including the V-dem report, the Economist’s Democracy survey, Freedom House, and the Bertelsmann Index.

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5

Development policy and foreign aid Conditionality and its discontents

We have to proof (to the European Commission) that we have an impact with regards to gender EU (administrator response when asked why implementation partners need to provide binary gender counts in reports)

Introduction The previous chapter examined the divergent trajectories of LGBTI rights in the context of the accession and neighborhood policies of the EU. In the following, I analyze the impact of LGBTI rights conditionality on Europe’s1 relations with its development partners. Similar to the SOGI-diminishing stabilization need for countries in the European neighborhood, post- colonial states recognize questions of (hetero)sexuality as “crucial to both national solidarity and a sense of sovereignty” (Wahab 2018, 133). They thus make human-rights sovereignty inseparable from self-determination struggles in a neoliberal setting on which the EU heavily imprints upon. Conversely, the EU attempts to promote human rights and good governance through the inclusion of conditional trade and aid offerings in its agreements with Global South countries. Yet, these stipulations are often perceived as ‘homocolonial’ influence, that is, “the deployment of LGBTIQ rights and visibility to stigmatize non-Western cultures” (Rahman 2014, 6). Adding to this complexity is the fact that SOGI questions are at times inadequately and inconsistently addressed in EU development policies, depending on the geopolitical context, as will be detailed below. The quote on top exemplifies how gender equality is narrowly conceptualized in EU foreign aid policy, although it should not be a reductive or binary concept. This incidence occurred at a Foreign Policy Instrument training that I was part of and was the response after a few colleagues collectively expressed discontent with the EU-required binaric gender measurement. With a new EU Gender Action plan that stipulates that 85% of all foreign actions need to contribute to gender equality and women’s empowerment by 2025, a holistic inclusion of SOGI issues becomes even more relevant. The latest policy framework for the EU’s relations with former colonies was the Cotonou Agreement in DOI: 10.4324/9781003054627-5

94  Development policy and foreign aid place from 2000 to 2020, which aimed to reshape dependency toward a mutual agenda among partners. A new agreement has been agreed upon in early 2021 but is yet to be ratified. Despite the stress on equality, it becomes obvious that varying commitments by EU member states to advantageous policy areas, different geographical preferences stemming from colonial linkages, and the primacy of establishing trade relations with Global South countries make the creation of a coherent development policy inclusive of LGBTI rights difficult to achieve. The insertion of conditionality in most aid-related political agreements ensures that human rights are perceived as a broader normative aspiration, linking LGBTI rights to good governance. In this sense, conditionality can be officially inserted into contractual language or can be more subtly brought up in mutual dialogs surrounding the respective bi- or multilateral relationship. Disputes with individual recipient countries or even interregional summit disputes incidents over LGBTI rights evidence the ambiguous and somewhat particularistic strategy the EU pursues. Normative differences are not only about objection to LGBTI rights but are also embedded in deeper post-colonial stances marked by residual distrust and anti-colonial sovereignty-minded attitudes. On the one hand, the diversity and relative novelty of LGBTI populations readily identifies them as sexual objects embodying the modernity that European states want to achieve in the Global South (Bracke 2012; Klapeer 2018). On the other hand, SOGI rights promotion attempts by the EU are portrayed as ‘Ebola from Brussels’ by ultra-conservative Global North actors using colonial imagery to coopt aid recipients, which often have grievances about their place in neoliberal development prescriptions. Used by LGBTI rights opponents, they import this decontextualized trope to signify the EU’s liberal as well as colonial imprints on their societies (Korolczuk and Graff 2018). These tensions create a narrative binary between supposedly progressive EU states versus premodern homophobe ones in the Global South. Once entrenched, such divisions are difficult to resolve, particularly when the EU’s ambitious human and LGBTI rights agendas are being viewed as hypocritical in light of the bloc’s protectionist trade, security, and refugee policies. EU-institutional pronouncements on future development agreements clearly express an interest in achieving ‘strategic interests’ (European Commission 2018). In this respect, development expert Laporte (2017) remarks that on paper, Europe has always set the bar high with dazzling declarations and strategies in relation to Africa that strongly stress the importance of democracy, governance and human rights agendas. More than ever before in these insecure times, the EU seems to have increasing difficulties to practice what it preaches. In 2018, the EU’s post-Cotonou draft development agreement for its 79 former colonies in Africa, the Caribbean, and the Pacific was criticized for linking the disbursement of development tools to border and migrant

Development policy and foreign aid  95 control of those countries (Euractiv 2018), evidencing a shift toward “a risky security-migration-development nexus” (Cuny 2018). Another view highlights that gender equality issues have until recently not featured centrally in joint aid agreement negotiations and that the EU’s vision of an inclusive SOGI focus contrasts with a preferred emphasis on ‘women and girls’ by Global South counterparts (Knoll and Mucchi 2020). These contradictions illustrate how EU institutions and the member states have difficulties avoiding the creation of opposing normative narratives that entrench the contrarian positions of each development partner and make dialog, negotiation, and compromise more difficult. At the same time, counterparts in the Global South may instrumentalize the EU’s normative interventions in order to resist human-rights reforms in their countries or distract from domestic governance issues. They can also work with like-minded neighbors and leverage regional intergovernmental organizations to minimize the risk of sanctions placed upon them. If the EU wants to improve its legitimacy as external rights promoter, I argue that it should rethink the conditional linking of SOGI rights to trade and aid agreements and, more carefully, calibrate its external support for LGBTI activists in recipient countries. Accordingly, this chapter focuses on the ambiguous role of LGBTI rights conditionality in the disbursement of EU development policies. Sociological institutionalism lends itself to exploring these kinds of questions, as it connects institutional policy-making (the negotiation and appropriation of development aid to selected partner countries and actors) with the normative weight that is socially established in defense, or in opposition, to LGBTI rights. It asks if the ‘logic of appropriateness’ (March and Olsen 2009) developed among the participating stakeholders is actually best suited for achieving an effective and human-rights reliant development policy. This approach is infused with critical constructivist and queer theoretical tenets, as they supply corrective lenses regarding (post)colonial relations and the manipulation of SOGI, respectively. Rather than a linear norm diffusion as was theorized initially (Risse et  al. 1999), a norm contestation can be expected in these exchanges, in which persuasion and (dis)agreement play a large role as well. Part of the challenge lies in the way in which these, for the EU constitutive rules, are mainly perceived as regulatory by the Global South. Norm contestation is also a reaction to unilaterally ‘imposed’ norms (Wilkinson and Langlois 2014) that can clash with national counter-norms such as political or cultural sovereignty. It also leads resistant governments to respond to this exclusionary vision with their own conservative message, as is evident in a number of states such as Uganda, Indonesia, or Jamaica as will be shown below. Moreover European states’ legacy as colonial powers that fetishized colonies as “porno-tropics for the European imagination”, with Europeans taking liberties with colonial subjects (McClintock 1995, 22), together with the colonial criminalization of homosexuality further discredits a strong normatively framed LGBTI inclusion argument. Historically,

96  Development policy and foreign aid the English legislation against homosexuality has had (and unfortunately still has) appalling consequences for the legal position of homosexual men, and, to a lesser extent, lesbians in the former British colonies. The effects of the former French, Dutch, Spanish, and Portuguese colonial legislation against homosexuality are less severe. (Tielman and Hammelburg 1993, 250) Notably, the Belgians did not criminalize homosexuality (Jjuuko and Tabengwa 2018, 72). The period of British imposition of same-sex criminalization coincided with Victorian prudish norms and was also influenced by Christian doctrines surrounding gender and sexuality. In terms of its impact today, the fact that the UK decided to leave the EU may weaken the bloc’s joint development policy but does not fundamentally change the damaging perception of Europe’s colonial past. The resulting post- or anticolonial reactions to current human-rights prescriptions emanating from the EU are therefore directly linked to European colonial legacies. In the process, the Western prescription of heteronormative inclusion and equality models for other countries has resulted in reifying specific sexuality norms as standards for civilization (Delatolla 2020). Residual post-colonial homophobic attitudes continue to be reinforced by contemporary religious Christian and Muslim institutions. Despite these challenges, Global South activists rearticulate pre-colonial tolerance norms of often-fluid SOGI cultures in adverse domestic settings and show resiliency in view of the ongoing securitization of LGBTI individuals. Yet, as I’ve experienced through exchanges at the global LGBTI activist Outsummit, civil society representatives view the EU as a rather distant actor who mainly funds technocratic or visibility projects and focuses on collaborating with – often problematicgovernmental actors. Moving from theory to practice, the following sections provide an overview of the EU’s conditionality mechanisms in development policies and illustrate their problematic outcomes in terms of policy reception in three different country cases. Uganda, Indonesia, and Jamaica are emblematic, as well as representative, for the regions they are located in and point to some crucial normative contestation issues.

EU conditionality in development aid Since the inception of the EU’s relations with its development partners, the Union has deployed normative, self-legitimizing narrative policy frames (Langan 2016). Irrespective of the issues arising from this self-portrayal, over the past decade, the topic of SOGI-based rights has elicited international diplomatic rows and ‘culture wars’ between European and Global South countries. These are reflective of existing power asymmetries and patronizing post-colonial policies as regularly vocalized in those disputes. In addition, the relative loss of the EU’s normative, material, and structural

Development policy and foreign aid  97 power after a decade of crises, together with exposure to an increasingly multipolar international system, weakens its use of conditions and policy stipulations. Not only do geopolitical considerations inform EU development policy planning but also the Union’s own justification as a neoliberal common market means that it needs to protect its own interest in the global race for economic dominance and geostrategic security. This then leads to donors having to carefully weigh the normative dilemmas that come with conditionality, competing interests and identities that subsequently lead to disputes over which norms to promote (Saltnes 2019). These difficult predispositions are further complicated by the fact that aid disbursement alone is not sufficient to solve multifaceted developmental problems, and a focus on specific demographics, such as women or LGBTI populations, in this process may lead to a hierarchy of rights and priorities. As such, the commitment to the external promotion of LGBTI rights comes with certain normative and political trade-offs. EU Official Development Assistance (ODA) stipulates that any external policy undertaken by the EU shall be guided by the very same principles that are at the core of its own creation: democracy, rule of law, universality, indivisibility of human rights and fundamental freedoms, respect for human dignity, equality, and solidarity as well as respect for principles of the UN Charter and international laws (EEAS 2016). The current EU treaty further includes the mandate to pursue in its external relations sustainable development, mutual respect among peoples, free and fair trade, the eradication of poverty, and the protection of human rights (TFEU, Article 3, 5). In order to achieve these ambitious goals, the EU includes a human-rights clause in all partner agreements. Political conditionality as part of this strategy is integral as “the human rights clause is included in EC regulations on aid, allowing full or partial suspension of aid if the principles of democracy, rule of law, and respect for human rights and freedoms are not observed” (Smith 2013, 111). This clause, however, is seldom invoked and rather aims to establish a rights-compliant baseline with the intention of integrating a rights-based approach in all external policy instruments. Human-rights conditionality thus tends to work primarily on a declaratory level, as the EU’s own parliamentary research report shows: While the scheme has been particularly effective in encouraging beneficiary countries to make the necessary legislative and institutional changes, such progress has not been matched at the level of implementation. Suspension of preferences under GSP (General System of Preferences) has been applied in only a few cases and, when it was, did not have an immediate and clear impact on the human rights situation. (European Parliament Briefing 2018) At the same time, “the ‘stick and carrot’ conditionality of the EU’s GSP system constitutes the flagship of trade initiatives aimed at supporting

98  Development policy and foreign aid sustainable development and human rights” (Portela and Orbie 2014, 63). In order to improve on this situation, the EU prefers now so-called GSP+ agreements, which provide for more incentives for human-rights compliant countries. The EU’s development aid program has a global scope but proceeds with targeted agreements. The main regional tools are the pre-eminent Cotonou Agreement which covers 79 former colonial African, Caribbean, and Pacific (ACP) countries, the Joint Africa–EU Strategy, the Joint EU–Caribbean Strategy, the EU Neighborhood Policy, and the EU–Latin America and EU–Asia Partnerships. With this regional approach, the EU recognizes the similar challenges adjoining countries face, for instance, in the subdivision of the ACP countries into three regions, yet also aims to adequately individualize its development strategies. A regional differentiation, however, might not be sufficient as countries have different historical and contemporary relations with Europe. This multifaceted complexity becomes evident in the delays concluding the post-Cotonou Agreement with the Organization of the ACP countries beyond 2020. The most important issues there consist of the diverging interest of the above-mentioned regions, the tensions over the elimination of preferential EU market access for ACP states, the recent involvement of the Eastern EU states with little experience in development policy, and the impact of Brexit on already existing intra-EU-institutional differences. Not only the institutional priorities of the various stakeholders, or policy preferences regarding the inclusion of issues such as migration and economic globalization, but also value differences cause visible tensions. These become particularly pronounced in the case of LGBTI rights: while the ACP negotiators seem to be reluctant to include a textual reference, the European Parliament wants to see not only an inclusion but also a strengthening of those references (European Parliament Research Service 2020). More than just a declaratory normative point, the latter issue is potentially significant for the effectiveness of such agreements: if SOGI rights are not embedded in those agreements to at least some extent, no pressure in case of non-compliance can be invoked, and a further marginalization of human rights may take place in the context of development cooperation. In order to incentivize governments to strive for the expected development outcomes, the EU has set up targeted funds and programs which also operate regionally under multiannual frameworks, with the previous sevenyear one ending in 2020 and the new one in effect from 2021 to 2027. While development spending over the past few years has declined slightly, the EU institutions and its member states taken together disbursed €75.2 billion on development aid from 2014 to 2020, which is equivalent to 55% of global ODA. Even considering the important role of national development agencies in this shared competence policy, this makes the EU the single largest actor in international development assistance (EU Commission Press Release 2020). Not surprisingly, the EU is also highly engaged in multilateral

Development policy and foreign aid  99 fora, actively supporting the fulfillment of the UN development framework adopted in form of the Sustainable Development Goals (SDGs) in 2015. EU ODA policies, including the insertion of conditionality, hence evolved in a context of global consensus about its necessity and a European ambition to spread ODA benefits with more accountability. Referring to the latter, EU citizens overwhelmingly support foreign aid (89% average for the EU 27, according to Special Eurobarometer 441, 2016), while, at the same time, around 92% are supportive of conditionality, with ensuing pressures on European donor governments to implement such accountability mechanisms (Bodenstein and Faust 2017). Political conditionality (PC) thus plays a larger role than ever before in foreign aid programming by states and international organizations. PC was initially defined as “the use of pressure, by the donor government, in terms of threatening to terminate aid, or actually terminating or reducing it, if conditions are not met by the recipient” (Stokke 1995, 12). This definition clearly points to the coercive force of the donor, but is vague about the sequencing of the stipulated (human rights) criteria: should they be ‘ex-ante’ in place so as to assure that conditions are met before aid disbursement takes place or should these conditions be ‘ex-post’ so as to require their subsequent implementation after an agreement has been concluded? While ex post conditionality is viewed as neo-colonially intrusive, ex ante sets a high rights threshold in the first place. Hence a relatively tight monitoring and active engagement of partners is required to make PC effective, leading the EU to use ‘political dialogue’ to avoid an explicit a priori PC that may be unacceptable for many third countries (Keukeleire and Delreux 2014, 205). On the receiving end, however, “third countries view dialogue as just another way for the EU to exercise pressure and conditionality” (Smith 2013, 115). Moreover, Velasco (2020) has empirically shown that it is states’ relations to each other that matter in rights diffusion processes, and not conditionality or aid dependency, as the latter two can actually have counterproductive effects. A general recognition of the need for more intense engagement over normative issues appears to be evident in recent discussions among EU member states arguing that EU ODA should become more selective regarding democratic governance and human rights (Molenaers et al. 2015, 2). The degree to which PC can either be jointly negotiated with recipient countries or more coercively stipulated by the donor government in conjunction with EU institutions depends in large part on the trust that was built based on previous interactions. These, however, are rather antagonistic in post-colonial and neoliberal contexts. The issue of establishing itself as a trustworthy diplomatic partner leads ironically back to the mutual value placed upon norms such as equality and respect, thus making the focus on (neo)liberal Eurocentric norm promotion a problematic basic principle. A point in case is that many countries’ LGBTI populations were previously not criminalized or somewhat protected by their invisibility, but have come

100  Development policy and foreign aid under more scrutiny through an externally imposed policy focus. To provide more detail, PC criteria can be inserted in a number of ways: PCs can range from subtle persuasion behind the closed doors of the policy dialog to outspoken press statements condemning certain government actions (such as anti-gay bills or electoral fraud); monitoring the ‘good governance commitments’ of the Memorandum of Understanding; using soft incentives (peer pressure, social control) through working groups involving both state and non-state actors; negotiating hard incentives by pushing for political targets in the Performance Assessment Framework while linking disbursement commitments to the achievement of these targets; the development of governance incentive tranches; temporarily suspending or reducing aid; shifting aid from one modality to another to reward democracy or to sanction regress; massaging governments into consultations with civil society. (Molenaers et al. 2015, 4) All of these diverse means of conditioning ODA onto the achievement of human rights and other objectives ought not to be considered on an equal footing but differentiated in terms of selectivity of application and degree of coerciveness. Incentivizing the emulation of good governance policies, for instance, represents a more amenable ‘soft’ strategy to implement PC as opposed to the suspension of aid, arguable a ‘hard’ strategic means to sanction violators. Based on these varieties of interventionist approaches, Rao (2010, 55) posits that PC should not just solely be understood as a coercive policy practice, but in its encompassing scope including structural adjustment and economic liberalization, as a hegemonic one. Moreover, the linking of LGBTI rights promotion to other policy areas such as generalized human rights, good governance, and economic development causes further issues. Connecting one policy objective to another may in theory be a way to broaden the focus of rights promotion and mainstream LGBTI rights in all policy areas that are under debate, but disputes in one policy area may spill over in related ones. The conditional linking of policy issues can not only be advanced by EU representatives, but this strategy can also be used by Global South countries strategically as well. To illustrate the problematic framing of LGBTI rights as human rights and the linking of ‘good governance’, in this area to financial benefits, the then-President of the European Parliament Martin Schultz caused diplomatic tensions in 2014 when he suggested at the joint EU–Africa summit that EU aid to certain countries should be cut if those do not put in place SOGI rights. African ambassadors were asking how the Union can impose LGBTI rights when others, such as migrant rights that affect many North Africans, are disregarded at Europe’s borders in addition to using the well-known cultural difference argument (Euractiv 2014). In the context of an emerging Global South debate by activists about conditioning aid on LGBTI rights maintenance, Anguita (2012) shares how “internal discussions amongst organizations of different

Development policy and foreign aid  101 countries kept evolving during many weeks and no consensus was reached in relation to the appropriateness of conditioning development cooperation onto the domestic respect for the rights of LGBTI person”, as this could have counterproductive repercussions for the work of those individuals and organizations. In my survey of activists, for instance, more than half of the respondents acknowledged that while political conditionality may be effective, it also has negative repercussions for domestic activism as “stigma in society is not only addressed by policies” (1), and PC “creates anti-EU narratives from governments and pressure groups that actively work against rainbow rights” (12). For all these reasons, the stipulation of aid disbursement on LGBTI rights implementation is fraught with unintended consequences. These are augmented when countries that are supposed to follow the EU model are sanctioned for not adhering to its standards rather than being positively incentivized to emulate it. Incentivizing expected behavior has been described as ‘positive conditionality’ (Smith 1998), though I would add that, in terms of normative policy advocacy, incentivizing good behavior is more significant than simply ‘the other coin’ of sanctioning bad behavior. It validates the norms the EU sets out for itself and others and thus makes them potentially more legitimate.

The EU’s use of conditionality in its ODA – does ‘one size fits all’ work? The question of the instrumental utility and normative validity of inserting LGBTI rights conditions in ODA policies is not only of a conceptual nature. In recent years, political tensions surrounding this practice has led to widespread condemnation among recipient governments, including in Ghana, whose government famously rejected the ‘gay aid’ or the Gambian president’s assertion ‘to rather die than be colonized twice’. Moreover, it appears that the newly found emphasis on LGBTI rights is often embedded in isolation from the overall program objectives and without sufficient recognition of the unintended marginalization of vulnerable minorities in the process of politicizing them (Bergenfield and Miller 2016, 4–5). Given the mixed nature of EU ODA disbursement, this section then examines the PC strategy in development policies taking into account both national and EU levels. National development agencies provide the planning infrastructure for the donor-state contribution. Together with the EU’s Commissioner for International Partnerships and the EuropeAid office, they set the agenda and channel multilateral ODA allocations to the recipient countries. There are three major budget lines for EU ODA: the European Development Fund (for ACP countries, €29.1 billion for 2014– 2020), the Development Cooperation Instrument (for Latin America and Asia, €19.6 billion), and the European Instrument for Democracy and Human Rights supporting CSOs worldwide (EIDHR, €1.3 billion).2 For 2015, direct ODA transfers to partnering governments, called ‘budget support’ made up about 20% of all EU development aid, and the promotion of human rights and good governance is one of five objectives there (the

102  Development policy and foreign aid others are institutionally and economically focused), with the following regional distribution: “Saharan Africa remains the largest recipient of budget support in volume (47%), followed by neighborhood countries (30%), Asia (10%), Latin America (6%), the Caribbean (4%), overseas countries and territories (2%) and the Pacific (1%)” (EuropeAid 2017). Much of the remaining funds in EU ODA are allocated for the implementing partners in the recipient countries, often NGOs, non-profit businesses, or other (faith-based) organizations. These are impacted as well by the heightened politicization of LGBTI rights as is their ability to effectively work on the ground. Although the EU explicitly prohibits discrimination of LGBTI populations in the work of these partner organizations, the latter may act against the interests of LGBTI populations, for instance, when female heads of households are prioritized in development work, thereby neglecting gay and transgender individuals (Lind 2010). Alternatively, widely present faith-based organizations can disagree with LGBTI-friendly donor stipulations and may find it hard to reconcile their mission with donor logics (Olarinmoye 2012). Moreover, policy initiatives by donor governments can conflict with the EU’s overall ODA delivery framework or at times disregard local input by affected populations in recipient countries. To illustrate, over 50 African LGBTI organizations implored former UK Prime Minister Cameron in 2011 not to condition aid on SOGI rights, as this would make their presence and work impossible (Saltnes and Thiel 2021). Yet, it is not only the Commission’s policy framework or the member state priorities that drive the insertion of PC in development strategies: To embolden itself as a credible policy actor, the European Parliament passed various resolutions, including one in 2010 “reminding” Africa that “the EU is responsible for more than half of development aid and remains Africa’s most important trading partner” and that “in all actions conducted under the terms of various partnerships”, sexual orientation is a protected category of nondiscrimination (Canning 2011). At the same time, European think tanks such as the European Center for Development Policy Management (ECDPM) have suggested in a 2017 report that the EU’s capacity to promote its values has declined as a result of trade-offs in mutual interactions over policies that are in the EU’s self-interest, but that ultimately hurt developing countries, such as the securitization of refugees or the primacy of trade relations (ECDPM 2017). Given that PC in EU programs has been subsequently introduced, materializes in a number of strategies and funding mechanisms, and is increasingly being concealed as political dialog, it is difficult to adequately assess the impact of conditionality comparatively in a generalized or quantitative manner. In order to illustrate the problematic insertion of conditionality on EU ODA to recipient countries, I thus use the contrasting case studies of Uganda, Jamaica as well as Indonesia. These globally diverse case studies show how conditionality can be instrumentalized by the recipient countries and either fails to achieve its objectives or creates unproductive

Development policy and foreign aid  103 counter-reactions. The three countries represent high-profile cases in which LGBTI rights have become a point of visible contestation by activists, governments, and international organizations: Uganda is widely considered a showcase for Africa’s state-sponsored homophobia with its life sentence for homosexual acts. Jamaica is one of the Western hemisphere’s most notorious places to be LGBTI with a potential ten-year prison sentence, and although Indonesia never criminalized homosexuality, with its waning pluralism and homophobe repression in medical, media, and societal sectors, emblematic of Asian developments (ILGA 2020). While Uganda highlights the detrimental normative impact of outright PC pursuit in terms of LGBTI rights, Jamaica and Indonesia represent more ambiguous examples. In the latter two cases, there is less of a negative impact as the EU has less leverage in Indonesia but also less investment. In Jamaica, the EU seems to avoid explicit PC in its more recent policies given its elevated status as one of the leading Caribbean states and the yet-unknown repercussions of Brexit on bilateral relations. None of the three countries are top-ten recipients of EU aid, so that geostrategic preferences should remain limited and constant. Two of them criminalized homosexuality during colonialization (Uganda and Jamaica), while, in Indonesia, the Dutch and Portuguese did not prohibit same-sex relations but still imported heteronormative norms. And all three countries have significant oppositional religious actors that rely on their demographics and transnational connections, with Christianity in its dominant conservative form, a contributing factor in Uganda and Jamaica. Indonesia, in contrast, is a Muslim-majority country. Uganda likely represents the most pronounced case of normative backlash of LGBTI conditionality in Africa. Cameroon, Malawi, Chad, the Gambia, Nigeria, and other African countries have not only upheld colonialera criminalization laws but also introduced discriminatory policies for LGBTI populations in the past five to ten years, signifying an ‘expanded criminalization’ beginning in the 1990s based on the HIV/AIDS epidemic (Jjuuko and Tabengwa 2018). Aside from this disease stigmatization, other justifications that are typically asserted are the need to protect domestic cultures – a classic cultural relativist argument – especially in the face of international pressure exerted through European and other Western development agencies. The traditionalist argument constitutes a deceptive trope, given that only British colonialization criminalized same-sex relations. Previously, homosexual acts as well as gender transgression were not regarded as scandalous, but part of the indigenous culture of many African tribes (Nyeck and Epprecht 2013). Hence countries such as Botswana or Gabon have decriminalized homosexuality with specific reference to the British vestige in 2019 and 2020, respectively. As regards the argument about the need to protect cultures from Western intervention, the much-maligned pressure is accompanied by incentives, and development partners are free to accept ODA or not. Moreover, scholars suggested that not only state but also private donors and religious organizations are moving their pro-/anti-LGBTI

104  Development policy and foreign aid efforts to the Global South now that rights are largely protected in the West, inciting a ‘proxy war’ over this issue there (Onishi 2015). In Uganda, President Museveni has ruled since 1986 and has used the alleged imposition of LGBTI rights provisions in long-standing development policies to detract from his government’s corrupt semi-authoritarianism. The quality of democracy, including political and civil rights, is deficient as measured by leading organizations with Freedom House classifying it as ‘not free’. In The Economist’s Democracy Survey, it is similarly categorized as a ‘hybrid’ democratic-authoritarian system with five points out of a possible ten and an attendant decrease in democratic indicators over the past ten years (The Economist 2020; Freedom House 2020). Already, in 1995, a constitutional prohibition of same-sex marriages was instituted on top of the existing colonial penal code (Jjuuko and Tabengwa 2018). With the help of his ‘Minister for Ethics & Integrity’, an office created in 1998, Museveni continues to repress LGBTI populations through measures such as not allowing LGBTI events under threat of jail, and repeated attempts to criminalize homosexuality. Homosexual acts were already criminalized under colonial rule. In 2014, the Ugandan parliament passed the internationally infamous anti-homosexuality act after five years of intense debate. It did, however, not entail the previously contained death penalty but rather imprisonment for life. In the years leading up to the passage of the law, domestic CSOs and legal experts were opposing the draft bill. They were, however, not successful given the prevalent homophobia and Museveni’s own motivation to use it as a payback for President Obama’s pressure to stay out of the Sudanese conflict (Jijuuko and Tabengwa 2018). However, few months later, it was rescinded by the Constitutional Court based on a procedural technicality, coincidentally after a number of important donor states, including Norway and the Netherlands decided to cut off aid, with others such as Austria and Sweden threatening to follow suit. The UK decided not to withdraw funds as most of their aid goes directly to implementing partners, not the government. The World Bank also initially postponed a loan during this period. International headlines such as ‘Ugandan law criminalizing homosexuality leads Western donors to halt aid or review aid programs to show disapproval, pushing down value of Ugandan currency’ (Thomson Reuters 2014) not only hint at the Western nature of intervention, importantly, they also link it to economic damage for the Ugandan economy. It thus plays potentially into the hands of Ugandans and allied African nations that view such aid conditionality as Western moral imperialism and neo-colonialism. After the repeal of the bill, donor governments continued their aid disbursements. The repeal may have been stimulated by donor pressure and thus temporarily relieved the tensions, but this has not stopped the government harassing LGBTI groups. In a move to indirectly target LGBTI and other civil society groups, the government introduced in 2015 the NGO act, requiring permits to operate and thus leave their activities at its mercy (Human Rights Campaign 2017). And, in 2018, it introduced a tax for social media use to regulate

Development policy and foreign aid  105 online communications. These repressive strategies, however, have not elicited similar reactions from Western donor governments, thus exemplifying incoherent selectivity in PC monitoring. While homosexual acts were already criminalized during the Victorian era, the reaffirmation of LGBTI discrimination starting in 2009 can be traced back to the activities of transnational acting U.S. evangelists. These were present and active before LGBTI rights became an international point of contention and were advocated (in)famously. Then-U.S. Secretary of State Hillary Clinton’s 2011 speech at the UN is often cited as a critical juncture in the internationalization of LGBTI human rights (see Chapter 6). Although the visibility that was provided by this struggle aided Uganda’s LGBTI groups in terms of international support, it also made them a target for the government. These tensions eventually led to the killing of prominent activist David Kato in 2011. Hence, in the case of Uganda, Jjuuko (2013) questions the rather detrimental impact of different countries’ aid conditionality statements, especially those of Sweden and the UK. These statements have the unfortunate impact of being labelled racist, neo-colonial, and Western, and of causing the LGBTI community to be the most blamed for the cut in aid, leading to it being further ostracised. (405) The Western pressures by various governments to repeal the law through withholding aid has also led to a widespread resentment of Western intervention domestically but also potentially increased the leverage of Uganda given the centrality of this issue: On the political level, denouncing homosexuality […] may be Africa’s way of claiming certain power over the Western world. When African leaders assert that homosexuality is un-African, they are pointing to a politics of postcolonial identity on the one hand, and fighting perceived western imperialism on the other. (Kaoma 2013, 97) The donor-based historical, economic, and cultural marginalization thus allowed the Ugandan government to establish a normative counter-narrative that resonates with the majority of its citizens as well as many other fellow African states. Uganda does not necessarily represent the worst anti-LGBTI case compared to the ten countries which have the death penalty for homosexuality on the books. Domestic activists were eliciting international support, yet with diverging, and sometimes ambivalent backing from European CSOs that privileged accountability over depoliticization (Saltnes and Thiel 2021). Given that Uganda is the largest African host country for refugees, EU

106  Development policy and foreign aid aid allocations are larger compared to others, in theory providing the EU with more leverage but also making the country an elevated actor in this interdependent relationship. Together with the supportive domestic and regional political climate among elites and the masses unified in support of the government’s opposition to LGBTI rights, President Museveni remains in office with continued EU funding. He does, however, not entirely seem to be immune to pressure as in the most recent elections in 2020, his baseless homophobe claims against his opponent led to Churches abandoning their support for Museveni, leading to his least successful reelection. In contrast, Indonesia used to represent a pluralistic and tolerant state, having emerged from mostly Dutch colonialization after the Second World War as the world’s largest Muslim-majority democracy following the end of Dictator Suharto’s regime in 1998. Yet, during colonial and, later, autocratic rule, the imposition of moral codes served to stabilize the governing regimes. For instance, in 1938/1939, over 200 mostly Dutch men were arrested in what was then known as the ‘Dutch Indies’ for alleged underage samesex relations, highlighting the precarious linkage of moral panics, emerging anti-colonial attitudes and a desire by Dutch authorities to show strength (Bloembergen 2011). Indigenous Indonesian SOGI attitudes and practices were historically fluid, although such Western lenses often contain “tropes concerning difference, authenticity and sexuality that took form through the colonial encounter” (Boellstorff 2005, 12). It is safe to say, though, that they were less heteronormative than today. For instance, gender variance is still more acceptable than same-sex attraction; thus, the latter is often invisibilized and the Western notion of ‘coming out’ questioned in the Indonesian context by activists (UNDP 2014). The democratization and liberalization after Suharto’s resignation, aided by feminist groups, reinforced Indonesian pluralism based among other factors on the diverse ethnic and religious groups present in this populous island nation. Despite a low level of social acceptance of LGBTI individuals, the island archipelago has over 100 domestic CSOs working on SOGI topics (Ibid.). In fact, one of the most significant international LGBTI rights events was hosted there in 2006, resulting in the normatively important Yogyakarta Principles guiding international SOGI rights developments (https://yogyakartaprinciples.org/). It is still considered the freest country in Asia in terms of general civil and political rights, according to Freedom House. In The Economist survey, it scores 6.48 out of 10 possible points, but the survey also indicates a stagnation of democratic quality (Economist 2020; Freedom House 2020). The country shares a number of mutually supportive attitudes about trade, regionalization, and diversity with the EU (European Parliament Briefing 2020), although increasingly, ‘LGBT’ is singled out as a ‘Western’ import inconsistent with national morals. More recently, progress in Indonesia has been rolled back as the country lurches toward LGBTI criminalization, with the semiindependent Western region of Aceh having become infamous for their strict interpretation of religious Sharia laws, including caning, and the outlawing

Development policy and foreign aid  107 of homosexuality there. The latter has been approved by the central home affairs ministry. The most recent turn toward anti-LGBTI policies since 2016 occurs during an increase in conservative Islamic forces throughout Indonesia, with President Widodo only seldom making statements about tolerance since he came into office in 2014. Scholars such as Weiss (2013) have noticed how both religious and cultural anti-colonial frames are used when calling LGBTI allies ‘un-Indonesian’ and ‘un-Islamic’ (157). In a reversed twist on the significance of colonial same-sex criminalization and anti-colonial resentment, Indonesia’s prosecutor spokesperson “said the battle over the gay Indonesians’ rights was about reaffirming ‘Indonesian norms and values’, adding legal same-sex relations were a relic of colonial rule” (Westcott 2017). More drastically, the defense minister compared LGBTI groups unfavorably to a nuclear threat and suggested that it was part of strategy by foreign states. This fits into the new national assertiveness aiming to invalidate the cultural tolerance leftovers of the Dutch era and pronouncing a sovereigntist counter-narrative. Such statements disregard that, before colonialization, here as well as in the many other Global South countries, indigenous gender expressions were more fluid and liberal already. As Mohanty (2002) points out, conservative monolithic perceptions about sexual and gender difference lead to ahistorical homogenization that then can be used for manipulation and misinformation. In terms of international pressure, the UNDP was asked in 2016 by the Indonesian vice-president to discontinue with their civil society program ‘Being LGBT in Asia’ and complied leaving many activists in Indonesia abandoned (Human Rights Watch 2016). Other international organizations such as UNAIDS continue to operate there. As is often the case, domestic courts have played an important role in safeguarding civil liberties, for example, when rejecting a petition in 2017 to make extramarital and homosexual activities illegal. As of 2020, however, a similar criminalizing bill worked its way through parliament. While LGBTI rights have emerged as a visibly securitized issue, women’s rights and religious pluralism have similarly come under pressure since the early days of democratization, signifying a broader reversal of democratic standards: “Defenders of human, women’s and sexual rights who do not specifically proclaim religious values are seen by conservative Muslims as liberals who do not uphold Islamic values but instead spread LGBT propaganda and communist ideas” (Wieringa 2019, 127). Despite this pressure, rights advocates continue to build social justice alliances, reach out to moderate religious actors, and promote a human-rights frame for LGBTI individuals. The EU delegation supports those within limits but also works with the Indonesian government to the extent accepted, for instance, through rights-based law enforcement training campaigns (Saragih 2020). The EU for its part is in a difficult position, as their substantial ODA contributions (more than €500 million over the past decade, according

108  Development policy and foreign aid to EuropeAid 2017) are being slowly phased out by 2020 with Indonesia’s improving economic record and the EU’s increasing focus on regional initiatives such as ASEAN. Moreover, China’s Belt-and-RoadInitiative is forecasted to provide the country with alternative means of development in the years to come. That means that there are limited and decreasing means for the EU to exert pressure through PC, and aside from two recent resolutions calling for more SOGI tolerance by the European Parliament in 2017 and 2019 – a fairly weak, normative instrument – there is little inf luence from the side of the EU. Referring to the Parliament’s protest resolution, the secretary at the Indonesian Embassy in Brussels complained that it “does not give Indonesia a chance to respond to the issues addressed in it” and ignores Indonesia’s efforts to forge constructive dialog with the EP. However, LGBTI activists in the country view it differently, seeing this as a detraction from the problem by highlighting procedural issues (Sebastian 2017). This example shows how both sides, the EU and Indonesian authorities, created a binary post-colonial conception of LGBTI rights that does not correspond to local realities. It also more narrowly illustrates the f lip-side of the leverage that PC may be able to effect: if there is leverage through the use of conditionality in ODA available, then, it could theoretically be used to promote LGBTI rights. But if countries such as Indonesia grow out of that dependency, then any hope of leverage expires. And it similarly highlights the fragmentation of the various EU institutions in contact with external partners: the European Parliament may have used the public condemnation of Indonesia to make their case, but this does not ref lect the general attitudes of other EU institutions, including the Commission or EEAS, or the member states, which have their own objectives and strategic preferences. Finally, Indonesia’s role as the world’s largest producer of palm oil, which is said to lead to a drastic deforestation in the country with the world’s third largest forest area, will likely further deteriorate bilateral relations, given the EU’s environmental ambitions. In contrast, Jamaica, as the largest former English colony in the Caribbean, has a long-standing aid relationship with the EU. Under the last EU budgetary framework, Jamaica received €66 million from the European Development Fund for the period 2014–2020 as well as additional EIDHR contributions (EuropeAid 2017). This makes Jamaica a potentially fruitful target for human-rights promotion, particularly as it is categorized as ‘free’ by Freedom House. The country also received a score of 6.96 (out of 10), the best-performing democracy of the three case countries in The Economist survey, albeit with stagnating indicators over the past decade (Freedom House 2020, Economist 2020). Despite Jamaica’s democratic credentials and slow improvement in public acceptance, the rights of LGBTI people are severely violated in the legal system, the health and welfare, and other public policy sectors (Blake and Dayle 2013). Social stigmatization is high

Development policy and foreign aid  109 and advanced by many churches, and a ten-year prison sentence exists for homosexual acts stemming from 1864, during British colonial rule. Similar to the Indonesian position, Rosamond King (2016) suggests that this behavior persists in part because the practice of espousing conservative […] ideals allows political and religious leaders to promote a Caribbean cultural nationalism that is markedly different from the ‘loose’ morals perceived in the contemporary laws and popular culture of the global North. In addition, vilifying sexual transgressors distracts the public from issues such as poverty or corruption. (8) Previous prime ministers have maintained a homophobe position, for instance, by suggesting that cabinet members should not be LGBT. The past two chief executives have voiced public support for the repeal of the homosexuality ban contingent on a public referendum. This rapprochement, however, seems more like a rhetorical move, given that referenda will likely uphold the existing statute anyway without concerted efforts to promote the issue in society, which is why CSOs have opposed a referendum. Such a domestically targeted discourse may also serve to bolster the government’s standing against increased international pressure, particularly from the UK. Evidence of the securitization of LGBTI people can be found in the various anti-gay manifestations in the wake of the public human-rights debate following the murder of a trans* identifying youth in 2016, and after legal challenges brought to domestic courts as well as the Inter-American Commission on Human Rights. The domestic courts have repeatedly upheld more restrictive interpretations of LGBTI rights, including an appeal to force a Jamaican TV station to broadcast a tolerance clip that was struck down under the disguise of breaching a companies’ constitutional rights. Liberalizing tendencies seem to go hand in hand with a discriminatory reassertion of sovereignty based on the perception of more visible LGBTI individuals in recent years, as a way to enshrine anti-colonial purity or as in Trinidad and Tobago, or as a way to assert sovereignty in opposition to post-colonial development partners. Despite this, or maybe precisely because of this SOGI-adverse environment, Jamaica was the first country in the Caribbean where a LGBTI rights group, the Gay Rights Movement, was established by activists in 1974. After an initial domestic focus, a current internationalization strategy is pursued by Jamaica’s advocacy groups, albeit with an ambivalent engagement of Eurocentric outside actors as these not only provide potential resources and legitimacy but also contribute to a domestic backlash (Blake and Dayle 2013). The legal internationalization strategy is illustrated by a high-profile discrimination case brought about by the Jamaican-Canadian activist Tomlinson as a precedent based on the Caribbean Community’s (Caricom) regional free movement provisions. Modeled after some of the

110  Development policy and foreign aid EU’s high-profile cases emphasizing freedom of movement, the Caribbean Court of Justice ultimately declined the case as there was little indication that homosexuals would be barred from Caricom nations (Godfrey 2018). This initial failure started a dynamic regionalization process, as a handful of similar SOGI-related cases have been logged across the Caribbean in a regional court-based decriminalization strategy. A court-led legalization would offer benefits to the governments as well as expressed by Tomlinson: “Truth be told we suspect that every politician in the Caribbean wants these laws to be struck down via court action so they have political cover” (Lavers 2019). In 2010, the EU–ACP Joint Committee responsible for negotiating a revision of the Cotonou Convention, which Jamaica is a leading member of, refused to include LGBTI rights and issued a statement on the ‘phenomenon of homosexuality’. In fact, the declaration urged the EU “to refrain from any attempts to impose its values which are not freely shared in the framework of the ACP-EU Partnership” (LGBT Intergroup, European Parliament 2010). The EU for its part may have recalibrated its strategy and now aims at promoting bottom-up change in Jamaica by funding a ‘Civil Society Boost Initiative’ to the tune of €500,000 from 2017 to 2019 aimed at vulnerable populations, including those with HIV/AIDS and LGBTI individuals. At the same time, the former EU’s delegation head dispelled any notions that PC is consistently applied in EU–Jamaica aid and trade relations: “There is no conditionality”, Wasilewska, the head of the EU Delegation in Jamaica, stated in an interview with the island’s most influential paper, The Gleaner. She denied that the EU would demand concessions based on EU rights prescriptions: But if in the course of our cooperation any of our values are not respected - for example, if we implement a project and during the project, there is a clear violation of human rights in the implementation […] we would raise that. (The Gleaner 2016) The current EU ambassador Van Steen publicly emphasized environmental and digital issues, with only a passing reference to the fight against genderbased violence, in a recognition that after Brexit, the EU may become a more distant partner for the UK’s former colony. At the same time, the UK has drastically cut their development aid in 2020 from the UNrecommended 0.7% of GNI to 0.5%, possibly opening up a window for the EU to fill in the gap for Jamaica, though this will require budgetary flexibility on the EU side and, in the meantime, will make the island’s vulnerable more exposed to marginalization (Worley 2021). The EU’s signaling of the avoidance of PC, together with a sensible recalibration of funds for civil society partners, may provide the best way forward given the constraining circumstances. In a country where the population seems in favor of retaining the

Development policy and foreign aid  111 homophobic law and where the EU has limited leverage, given its modest aid allocations – though it regards Jamaica as essential in economic Partnership Agreements – PC as such has limited value.

Conclusion A cursory look at the global state of (de)criminalization of homosexuality makes it clear that the introduction of PC in EU development policies in the 1990s did not significantly contribute to a decrease of countries declaring LGBTI individuals or their behavior, illegal. Rather, a normative binary over SOGI rights, enmeshed with post-colonial resistance, developed in many cases. The case studies above have evidenced limited EU means as well as largely ineffective results for PC in development policies. This divergence in the application of PC corresponds to the larger issue of selectivity in the EU’s treatment of development partners, where other geopolitical factors complicate a consistent norm application (from migration in Uganda, to China in Indonesia, and Brexit in Jamaica). In purely political terms, such “variable application of conditionality has undoubtedly detracted from the EU’s international credibility and influence” (Holland and Doidge 2012, 213). Yet, it may also be necessary, given each country’s unique relations with the EU and its broader geopolitical embeddedness. This leads to the question if a consistent application of LGBTI normative stances in interaction with recipient countries is indeed appropriate. Or would it be preferable to work with the countries where chances for success are stronger, in hopes that they would contribute to a more globally balanced, and more powerful international, consensus on LGBTI human rights? This strategy, however much it incentivizes good governance, may be viewed as selective application of LGBTI rights norms and policies as well and leave out many cases where the need for policy reform may be greatest. Moreover, positive PC may in theory be a way to incentivize ‘good behavior’ in terms of respecting LGBTI rights, but at the same time, it will be difficult to administer such adjustments in a financially inflexible multiyear EU budget. Returning to the sociological institutionalist question about a suitable ‘logic of appropriateness’ that prevents the buildup of counter-narratives over PC, the more recent avoidance of official statements highlighting conditionality and the Global South’s equation of PC with neo-colonialism make it clear that it there are clear limits to its utility. In fact, conditionality, even if concealed as political dialog or positive incentivizing, is not evenly applied across cases and leads to different outcomes depending on the relationship between state donors and recipients and the domestic sociopolitical situation. Aside from the ‘unresolved policy dilemma’ (Molenaers et al. 2015) of PC, the way in which SOGI often becomes instrumentalized and securitized in defense of often-unrelated policy objectives makes the conditioning of aid on specific human-rights benchmarks questionable.

112 Development policy and foreign aid Rather than politicizing LGBTI individuals and groups that way, a more broadly conceived human rights and good governance approach may be more useful to protect those to expand community-based programs aimed at fostering tolerance and dialog and connect with broader social justice issues (Blasius 2013). A conditional approach toward those broader governance issues still maintains an asymmetrical interdependence in which the EU is the dominant and often, a distrusted partner. Finally, the residual influence of colonial experiences and the performative manipulation of those by both sides constitute underlying contextual conditions that continue to shape the interdependent relations of the EU with the recipient countries. It is interesting to note that colonialism is employed differently, so that many countries aim to keep the colonial criminalization in place, while in the Indonesian case, Dutch liberalism is viewed as a colonial mistake in defense of indigenous culture. A continual focus on colonialism may limit the actual policy choices that are at the EU’s disposal when aiming to improve human rights in third countries, as it finds itself trapped in this seemingly eternal trope. This quandary becomes ever more pressing when competitive development partners such as China provide an alternative source of funding with fewer normative strings attached. Given these structural issues, a careful calibration of expectations and strategies, in collaboration with Global South partners, becomes ever more important for European states and the EU. The EU’s renewed focus on climate change mitigation could be a way to incentivize other states to sustainably invest in their relations with the Union, although self-interested trade, migration, and security policies may jeopardize the pursuit of the supposed common interest in sustainability. It remains to be seen if the post-Cotonou agreement for ACP countries with its intended balance of economic, rights, environmental, and security interests as well as increased civil society and human-rights support in the proposed Neighborhood, Development, and International Cooperation Instrument (NDICI) 2021–2027 will result in a more effective and just EU development policy. This enlarged portfolio under Finnish Commissioner Urpilainen will handle the main foreign assistance programs for the Neighborhood Policy and the Global South more generally but also relations with the UN in an attempt to streamline development with the UN’s SDGs. The following chapter expands on the EU’s attempts to promote LGBTI rights at the UN and related international organizations.

Notes 1 Just as in EU policy practice, I use ‘Europe’ synonymously with the EU and subsume EU institutions and the member states as much of its development aid is funded by the 27 countries, but channeled in large part through the EU. 2 Similar figures for the new multiannual budget framework 2021–2027 were not yet available at the time of writing.

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References Anguita, Luis. 2012. “Aid Conditionality and Respect for LGBTI People Rights”, Sexuality Watch Policy Paper No. 7, April 2012. Bergenfield, Rachel and Alice Miller. 2016. Queering International Development?: An Examination of New “LGBT Rights” Rhetoric, Policy, and Programming among International Development Agencies, https://lgbtq.hkspublications. org/2014/11/20/queering-international-development-an-examination-of-newlgbt-r ig ht s -rh et or i c -p ol i c y- a nd-p rog r a m m i ng- a mong-i nt e r n at ion a l development-agencies/, accessed May 13, 2014. Blake, Conway and Philip Dayle. 2013. “Beyond Cross-cultural Sensitivities: International Human Rights Advocacy and Sexuality”, in: Lennox, Corinne, and Matthew Waites, eds. Human Rights, Sexual Orientation and Gender Identity in the Commonwealth. London: University of London Institute of Commonwealth Studies, 455–476. Blasius, Mark. 2013. “Theorizing the Politics of (Homo)Sexualities across Cultures”, in: Weiss, Meredith and Michael Bosia, eds. Global Homophobia. Chicago: University of Illinois Press, 218–245. Bloembergen, Marieke. 2011. “Being Clean Is Being Strong Policing Cleanliness and Gay Vices in the Netherlands Indies in the 1930s”, in: Van Dijk, Kees and Gelman Taylor, eds. Cleanliness and Culture: Indonesian Histories. Leiden: KITLV Press, 117–146. Bodenstein, Thilo and Joerg Faust. 2017. “Public Opinion on Foreign Aid and Conditionality.” Journal of Common Market Studies, 5(5): 951–973. Boellstorff, Tom. 2005. The Gay Archipelago: Sexuality and Nation in Indonesia. Princeton, NJ: Princeton University Press. Bracke, Sarah. 2012. “From ‘Saving Women’ to ‘Saving Gays’: Rescue Narratives and Their Dis/continuities.” European Journal of Women’s Studies 19 (2): 237–252. Canning, Paul. 2011. “International Pressure on Anti-gay Laws in Africa Must Not Stop”, The Guardian, April 20. Cuny, Elise. 2018. “The EU’s New Migration Partnership with Mali: Shifting towards a Risky Security-Migration-Development Nexus”, Egmont Working Paper. Delatolla, Andrew. 2020. “Sexuality as a Standard of Civilization: Historicizing (Homo)Colonial Intersections of Race, Gender, and Class.” International Studies Quarterly 64 (1): 148–158. The Economist. 2020. “Democracy Index 2019”, http://www.eiu.com/Handlers/ W h it e pap erHa nd ler.a sh x?f i=D e mo c ra c y-I ndex-2019.p d f& mode=w p& campaignid=democracyindex2019, accessed January 4, 2021. Euractiv. 2014. “Schulz: Cut aid to African countries with anti-gay laws”, Daily Brief, April 1. Euractiv. 2018. “Don’t Go Chasing a Short Term Migration Fix”, Daily Brief, May 31. European Center for Development Policy Management. 2017. “Coherence Report – Insights from the External Evaluation of the External Financing Instruments”, http://ecdpm.org/publications/coherence-report-external-evaluation-externalfinancing-instruments/?, accessed November 21, 2017. EuropeAid. 2017. “Recipients and results of EU aid”, https://ec.europa.eu/ in fo/aid- development- coop eration-fundamental-r ig hts/re cipients-andresults-eu-aid_en, accessed May 13, 2021.

114  Development policy and foreign aid European Commission. 2018. “Impact Assessment”, https://ec.europa.eu/europeaid/ s it e s /d evc o/f i l e s /joi nt- s wd-i mp a c t- a s s e s s m e nt-r e n ewe d-p a r t n e r sh ip acp-380-20161122_en.pdf, accessed June 29, 2018. European Commission. 2020. “Press Release: EU Remains World’s Largest Development Donor”, https://ec.europa.eu/commission/presscorner/detail/en/IP_20_674, accessed January 15, 2021. European External Action Service (EEAS). 2016. “Human Rights & Democracy”, https://eeas.europa.eu/headquarters/headquarters-homepage/414/humanrights-democracy_cs. European Parliament Briefing. 2018. “Human Rights in EU Trade Policy: Unilateral Measures Applied by the EU”, http://www.europarl.europa.eu/thinktank/en/ document.html?reference=EPRS_BRI(2018)621905, accessed July 12, 2018. European Parliament Briefing. 2020. “Indonesia’s Prospects for Closer EU Ties”, https://www.europarl.europa.eu/RegData/etudes/BRIE/2020/646149/EPRS_ BRI(2020)646149_EN.pdf, accessed November 21, 2020. European Parliament Research Service. 2020. “Briefing, after Cotonou: Towards a New Agreement with the African, Caribbean and Pacific States”, https://www. europarl.europa.eu/RegData/etudes/BRIE/2020/659274/EPRS_BRI(2020) 659274_EN.pdf, accessed January 15, 2021. Freedom House. 2020.”Country Rankings”, https://freedomhouse.org/countries/ freedom-world/scores, accessed January 5, 2021. Godfrey, Chris. 2018. “Landmark Gay Rights Case Will Challenge Homophobic Laws”, The Independent, https://www.independent.co.uk/news/world/americas/ landmark-gay-rights-case-will-challenge-homophobic-laws-in-trinidad-tobagoand-belize-10114462.html, accessed January 15, 2021. Holland, Martin and Matthew Doidge.2012. Development Policy of the European Union. New York: Palgrave. Human Rights Campaign. 2017. “Uganda Government Shuts down Pride for Second Consecutive Year”, https://www.hrc.org/blog/uganda-government-shuts-downpride-for-second-consecutive-year, accessed November 19, 2018. Human Rights Watch. 2016. “Interview: Indonesia’s LGBT Community under Threat”, https://www.hrw.org/news/2016/08/11/interview-indonesias-lgbt-communityunder-threat. ILGA. 2020. “State Sponsored Homophobia Report”, https://ilga.org/state-s+ ponsored-homophobia-report, accessed January 19, 2021. Jamaica Gleaner. 2016. “EU Not Linking Aid to Gay Rights, Death Penalty”, December 11. http://jamaica-gleaner.com/article/lead-stories/20161211/eu-notlinking-aid-gay-rights-death-penalty, accessed January 15, 2021. Jjuuko, Adrian. 2013. “The Incremental Approach: Uganda’s Struggle for the Decriminalisation of Homosexuality”, in: Lennox, Corinne and Matthew Waites, eds. Human Rights, Sexual Orientation and Gender Identity in the Commonwealth. London: University of London Institute of Commonwealth Studies, 381–408. Jjuuko, Adrian and Monica Tabengwa. 2018. “Expanded Criminalisation of Consensual Same-sex Relations in Africa: Contextualising Recent Developments”, in: Nicol, Nancy and Adrian Jjuuko, eds. Envisioning Global LGBT Human Rights: (Neo)colonialism, Neoliberalism, Resistance and Hope. London: University of London Institute of Commonwealth Studies, 63–96. Kaoma, Kapya. 2013. “The Marriage of Convenience: Postcolonial Politics of Sexual Identity”, in: Weiss, Meredith and Michael Bosia, eds. Global Homophobia. Springfield: University of Illinois Press, 75–102.

Development policy and foreign aid  115 Keukeleire, Stephan and Tom Delreux. 2014. The Foreign Policy of the European Union. London: Palgrave. King, Rosamond. 2016. Island Bodies: Transgressive Sexualities in the Caribbean Imagination. Gainesville: University of Florida Press. Klapeer, Christine. 2018. “Dangerous Liasions? Homodevelopmentalism, Sexual Modernization and LGBTI Rights in Europe”, in Mason, Corinne, ed. Routledge Handbook of Queer Development Studies. New York: Routledge, 102–118. Knoll, Anna and Virginia Mucchi. 2020. “Africa-Europe Relations Beyond 2020: Looking through a Gender Lens”, ECDPM discussion paper, https://ecdpm. org/publications/africa-europe-relations-beyond-2020-looking-throughgender-lens/? accessed January 15, 2021. Korolczuk, Elżbieta and Agnieszka Graff. 2018. “Gender as “Ebola from Brussels”: The Anticolonial Frame and the Rise of Illiberal Populism.” Signs 43 (4): 1–18. Langan, Mark. 2016. The Moral Economy of EU Association with Africa. New York: Routledge. Laporte, Geert. 2017. “Do Values Still Matter in the Europe-Africa Partnership?” ECDPM Talking Points blog, 24 February. Lavers, Michael. 2019. “Lawsuits in Four Caribbean Countries Challenge Colonial-era Sodomy Laws”, Washington Blade, https://www.washingtonblade. com/2019/08/08/lawsuits-in-four-caribbean-countries-challenge-colonial-erasodomy-laws/, accessed January 15, 2021. LGBT Intergroup, European Parliament. 2010. “Declaration of ACP Parliamentary Assembly”, https://www.europarl.europa.eu/RegData/etudes/etudes/ join/2014/534977/EXPO-DEVE_ET(2014)534977_EN.pdf, accessed November 5, 2019. Lind, Amy. 2010. Development, Sexual Rights and Global Governance. New York: Routledge. March, James and Johan Olsen. 2009. “The Logic of Appropriateness”, Arena Working Paper 4/09, https://www.sv.uio.no/arena/english/research/publications/ arena-working-papers/2001-2010/2004/wp04_9.pdf, accessed January 3, 2021. McClintock, Anne. 1995. Imperial Leather: Race, Gender, and Sexuality in the Colonial Contest. New York: Routledge. Mohanty, Chandra. 2002. “Under Western Eyes: Feminist Scholarship and Colonial Discourses”, in: McClintock, Anne, Aamir Mufti, and Ella Shohat, eds. Dangerous Liasions: Gender, Nation and Post-Colonial Perspectives. Minneapolis: University of Minnesota Press, 255–277. Molenaers, Nadia, Sebastian Dellepiane, and Jorg Faust. 2015. “Political Conditionality and Foreign Aid.” World Development 75: 2–12. Nyeck, S. N. and Marc Epprecht. 2013. Sexual Diversity in Africa: Politics, Theory, and Citizenship. Montréal: McGill-Queen’siversity Press. Olarinmoye, Omobolaji Ololade. 2012. “Faith-Based Organizations and Development: Prospects and Constraints.” Transformation 29 (1): 1–14. www.jstor.org/ stable/90008031. Onishi, Norimitsu. 2015. “US Support of Gay Rights in Africa May Have Done More Harm Than Good”, New York Times, December 20, https://www.nytimes. com/2015/12/21/world/africa/us-support-of-gay-rights-in-africa-may-have-donemore-harm-than-good.html?&_r=0, accessed November 21, 2017. Peale, Farris. 2015. “Pursuing Equality: Western Response to Gay Rights Abroad”, Harvard Political Review Online, http://harvardpolitics.com/world/gay-rightswestern-response/, accessed January 15, 2021.

116  Development policy and foreign aid Portela, Clara and Orbie, Jan. 2014. “Sanctions under the GPS and EU Foreign Policy: Coherence by Accident?” Contemporary Politics 20 (1): 63–76. Rahman, Momin. 2014. Homosexualities, Muslim Cultures and Modernity. London: Palgrave Macmillan. Rao, Rahul. 2010. Third World Protest: Between Home and the World. London: Oxford University Press. Risse, Thomas, Kathryn Sikkink, and Stephen Ropp. 1999. The Power of Human Rights. New York: Cambridge University Press. Saltnes, Johanne Døhlie. 2019. “Global Justice and Aid Effectiveness: Reforms of the European Union’s Development Policy”, GLOBUS Research Paper 3/2019. Saltnes, Johanne and Markus Thiel. 2021. “The Politicization of LGBTI Human Rights Norms in EU-Uganda Development Partnership.” Journal of Common Market Studies 59 (1): 108–125. Saragih, Jonat. 2020. “Outright International Presentation on Indonesia’s LGBTI Crisis”, Outsummit, December 9, 2020. Sebastian, Dave. 2017. “Indonesia Says It Safeguards Rights of All, Including LGBT Citizens”, Voice of America Interview, June 22. Smith, Karen E. 1998. “The Use of Political Conditionality in the EU’s Relations with Third Countries: How Effective?” European Foreign Affairs Review 3 (2): 253–274. Smith, Karen E. 2013. EU Foreign Policy in a Changing World, 3rd ed. London: Wiley. Stokke, Olav. 1995. Aid and Political Conditionality. London: Routledge. Thomson Reuters News, 2014, “Western donors halt aid to Uganda”, https://news. trust.org/item/20140226160032-td4jl/, accessed June 1, 2021. Weiss, Meredith and Michael Bosia, eds. 2013. Global Homophobia. Springfield, IL: University of Illinois Press. Tielman, Rob and Hans Hammelburg. 1993. “World Survey on the Social and Legal Position of Gays and Lesbians”, in: Hendriks, Aart, ed. The Third Pink Book, New York: Prometheus Books, 250–77. United Nations Development Program. 2014. “Being LGBT in Asia: Indonesia Country Report”, https://digital.library.unt.edu/ark:/67531/metadc955580/, accessed January 15, 2021. Velasco, Kristopher. 2020. “A Growing Queer Divide: The Divergence between Transnational Advocacy Networks and Foreign Aid in Diffusing LGBT Policies.” International Studies Quarterly 64 (1): 120–132. https://doi.org/10.1093/isq/sqz075. Wahab, Amar. 2018. “Queer Affirmations: Negotiating the Possibilities and Limits of Sexual Citizenship in Saint Lucia”, in: Nicol, Nancy and Adrian Jjuuko, eds. Envisioning Global LGBT Human Rights: (Neo)colonialism, Neoliberalism, Resistance and Hope, London: Institute for Commonwealth Studies, 131–156. Westcott, Ben. 2017. “Inside Indonesia’s LGBT Crackdown”, CNN, http://www.cnn. com/2017/05/31/asia/indonesia-lgbt-rights/index.html, accessed January 15, 2021. Wieringa, Saskia. 2019. “Is the Recent Wave of Homophobia in Indonesia Unexpected?”, in: Fealy, Greg, and Ronit Ricci, eds. Contentious Belonging: The Place of Minorities in Indonesia. Singapore: ISEAS Publishing, 113–132. Wilkinson, Cai and Anthony J. Langlois. 2014. “Special Issue: Not Such an International Human Rights Norm? Local Resistance to Lesbian, Gay, Bisexual, and Transgender Rights.” Journal of Human Rights 13(3): 249–255. Worley, William. 2021. “UK NGOs Condemn ‘Truly Shocking’ Lack of Government Aid Transparency”, Devex, https://www.devex.com/news/uk-ngoscondemn-truly-shocking-lack-of-government-aid-transparency-98977, accessed January 30, 2021.

6

Global and diffuse? The EU’s multilateral promotion of LGBTI rights

I understand that sexual orientation and gender identity raise sensitive cultural issues. But cultural practice cannot justify any violation of human rights. Women’s treatment as second-class citizen has been justified at times as a ‘cultural practice’. (UN Secretary General Ban Ki Moon 2011)

Introduction The quote above illustrates the tight connection of sexual orientation and gender identity (SOGI) rights with women’s rights in the context of the United Nations (UN). In the UN system, the debate over the degree of universality versus cultural specificity of those rights, as well as the question of SOGI’s foundation in international law, continues to dominate intergovernmental exchanges. Similar norm-based struggles occur in the EU, but the UN has a global scope with of 193 states as mandate holders. Recognizing the UN’s centrality in world politics, one of the EU’s main foreign features lies in its advocacy of multilateral politics, highlighted in its Global Strategy of 2016 as the promotion of a rules-based global order with multilateralism as its key principle and the UN at its core (European External Action Service 2016). More than just a declaratory ambition, this outlook is reflected in the EU obtaining as first, and thus far, the only non-state actor, an enhanced observer seat at the UN General Assembly (UNGA). This status provides the Union with preeminent visibility among non-state actors, with the right to speak for its representatives and the right to submit proposals and amendments. In addition, European states collectively constitute the largest source of funding for the UN general budget (30% of the total) and for UN peacekeeping (31%). Among member states, Germany, followed by Sweden and the Netherlands are the top three contributors. Moving from material to normative support, ‘human rights and gender equality’ is one of the four priorities that are listed on the EU’s UN-relations website, next to the promotion of peace and security, action against climate change, and UN reform (European External Action Service 2020). The EU, however, has not necessarily DOI: 10.4324/9781003054627-6

118  Multilateral promotion of LGBTI rights been viewed universally as a promoter of human rights in multilateral settings and criticized for its insufficient asylum policy, for example. This somewhat ambiguous international role, together with its post-colonial stature and the ambition to be a leader in the UN, provides it with an ‘ambivalent profile’ in human rights promotion (Daidouji 2019). Given these institutional complexities and the contradictions between EU leadership ambitions and representative equality in the UN, an analysis of its attempts to increase SOGI rights globally constitutes an essential field of investigation in the broader scope of this book. It also provides for an interesting analytical comparison, with both the EU and the UN representing intergovernmental institutions where questions of norm emergence, negotiation, and contestation materialize differently based on differences in membership, institutional cultures, and the performative agency of state actors. As a recent, more volatile provision of the international human rights regime, LGBTI rights have not featured as part of the catalog of human-rights protections that are spelled out in the UN’s Universal Declaration of Human Rights (UDHR) or its supplementary International Covenants on Civil and Political Rights and on Economic, Social, and Cultural Rights. These were formulated after World War II, before SOGI issues became part of public and political discourses (see Chapter 2). The globalization of sexualities with its multifaceted implications in economic, political, and cultural terms (Binnie 2004) as well as the early engagement of HIV/AIDS activists seeking international solutions to the epidemic (Shepard and Hayduk 2002), together with the lesbian factions represented in UN gender conferences (Swiebel 2009), have incrementally advanced SOGI awareness in UN institutions and stakeholders. While non-state as well as institutional activists have indeed moved SOGI rights to the forefront of the UN’s Human Rights instruments, legally binding protections are still largely lacking, with those rights remaining heavily contested among UN member states (D’Amico 2015). In terms of judicial enforcement, the idea of establishing a UN-associated World Court of Human Rights emerged in the early 2000s, but fears of interventionism and the contestation of the International Criminal Court mean that it remains a cosmopolitan vision for now (Freedman 2014). Thus, aside from the UN experts assembled in the Human Rights Committee – one of ten human-rights treaty bodies monitoring the implementation of the main conventions – the intergovernmental Human Rights Council (HRC) has become the central UN focal point for the mutual state assessment of SOGI issues. Not only is the UN platform a competitive arena for global geopolitics, but in the words of Finnemore and Sikkink (1998), it represents a “highly contested normative space” (897). The HRC, reformed in 2006 as a new body from the previous Human Rights Commission, is made up of 47 regionally elected state representatives and includes among other institutional improvements the Universal Periodic Review process.

Multilateral promotion of LGBTI rights  119 As part of this process, each state is reviewed every five years for human rights compliance, based on data provided by the state, independent experts, and domestic CSOs. The so-called ‘shadow’ report by CSOs is said to be particularly relevant with respect to the bringing up of SOGI issues in various countries and the bottom-up expertise reflected in those (Gerber and Gory 2014). In this core task, aside from the thematic work of the HRC focused on specific rights areas, LGBTI CSOs such as Arc International have contributed over 1,000 recommendations in the review process since its inception in 2003. States and regions react differently to the HRC recommendations, with Africa and Asia ranking lowest among the regions that accept the Council’s SOGI recommendations (ARC International 2016). Equally important as civil society input are the group dynamics in UN politics, as states are often represented in (in)formal groups to increase leverage or express support for a policy motion. These foundational group dynamics come with advantages but also complicating issues (Laatikainen and Smith 2017), as will be detailed below. This chapter assesses the EU’s institutionalized access to and strategic use, that is, coherent action including framing, negotiating, and voting, of other IGOs such as the UN HRC, the World Bank, or other regional institutions in order to promote LGBTI rights internationally. The EU as an IGO has an affinity to cooperate with other similarly constituted organizations and supposedly is better able to promote their policies in those based on this level of understanding (Zielonka 1998). Such opportunity structures can be exploited for the promotion of LGBTI rights globally through a concerted effort by EU institutions and EU member states. But as I will show in the following sections, there are (1) normative, (2) political, and (3) institutional-organizational issues that limit the extent to which the EU is able to diffuse their LGBTI rights objectives. The normative constraints refer to the way sexual rights norms are visibly highlighted and prescribed in asymmetrical power relations, whereas the political ones concern the volatile status that the EU as an observer has at the UN. Lastly, the institutional– organizational issues refer to the EU’s fragmented power split between the member states and the EU institutions with regards to executive and representative functions. Such a three-pronged analysis aims at uncovering deeper constitutive contingencies that condition the relative success or failure of Europe’s norm promotion attempts. A sole concentration on which states supported which motion would be shortsighted for a normative analysis, as a focus on voting behavior does sufficiently address normative or relational complexities. Hence, in the following, an overview of the role that the EU has played in furthering LGBTI rights primarily in the UN system (of which the Bretton Woods institutions World Bank, IMF, and WTO are part of) is provided, followed by a detailed analysis of the aforementioned constraints before assessing the EU’s significance and effectiveness in this arena.

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A short overview of EU–UN relations regarding LGBTI rights In EU–UN inter-organizational relations, one cannot disassociate the role of individual member states from the programmatic platform the EU as political framework advances. Hence, in the following, I refer to a broader set of actors that varyingly involves the member states, National Human Rights Institutions (NHRIs), the EU as an entity as such, or advocacy organizations based in the EU. The latter exert pressure on their governments, the EU or the UN bodies they engage, be it the UN Economic and Social Council, the UNGA’s third committee dealing with human, social, and cultural issues or the more central UN HRC. In order to avoid simplistic binaries, one should keep in mind though that no clear-cut national distinctions between supporters or opponents of LGBTI rights exist; rather, each country contains a multitude of progressive and conservative actors engaged in norm promotion. NHRIs are potentially useful, domestically based human rights instruments but have to navigate governmental sensitivities as well as some of the UN’s politics related to those (Hafner-Burton 2013). European LGBTI CSOs invoke the universality of human rights and model the EU’s own relatively advanced status in LGBTI rights standards to advocate for more SOGI protections at the UN. At the same time, at the Outsummit 2020 that I observed, activists repeatedly called out the obstacles toward institutional access and accreditation, citing, for instance, a lack of access for transgender people based on the legal documents needed to gain entry. LGBTI rights emerged on the UN’s institutional radar only in the mid-1990s, especially through lesbian gender rights activism at the 1995 UN Conference on Women in Beijing. This movement continued into the early 2000s as part of the discussions about expanding human rights, spearheaded by women’s rights activists and legal scholars. They skillfully connected SOGI-based rights to general protections, such as the right to privacy or the freedom of association that were more explicitly recognized by existing UN treaties (Swiebel 2009; ). As for EU states, especially, the older Western EU countries were consistently supportive of tabling resolutions in conjunction with other steward states from the Global North (such as often, Canada or Norway) or the South (in the past Brazil, Indonesia, or South Africa, although all of these governments have become less reliable LGBTI rights supporters). Beginning in 2003, the so-called ‘Brazilian Resolution’ on SOGI was introduced by the country in the Human Rights Commission – the precursor to today’s HRC – but eventually withdrawn when it became clear that the only other supporters were Global North states. This insufficient backing led to a broadened search for potentially supportive states, and in the following years, resolutions with more diverse endorsements were introduced. Hence the initial failure seems to have led at a minimum to a reassessment of strategies, and in a more idealistic view also resulted in social learning and coalition-building. Few years later, the Yogyakarta Principles of 2006

Multilateral promotion of LGBTI rights  121 were a constitutional milestone to identify state obligations in this emerging area passed by an international rights activist alliance that met in the Indonesian city to develop this aspirational normative, but not legally binding document. It was supported by Northern and EU-based states, although the drafters came from 25 countries representing all global regions. It advocated for the term SOGI to avoid the Western-centric, identity-based ‘LGBT’ label. During those years, annual declaratory statements and resolutions on sexual orientation and human rights were made with an increasingly larger number of supporting states, from 23 in 2005 to 85 in 2011, introduced subsequently by New Zealand, Norway, Colombia, and Argentina. And, in 2016, the Yogyakarta+10 review process added additional state obligations and expanded the subject term SOGI to SOGIESC, adding ‘expression’ and ‘sex characteristics’ to reflect self-expression and the inclusion of intersex people, respectively (Vance et al. 2018). In 2008, a first attempt was lodged by an alliance of those supportive states to introduce the aforementioned ‘Declaration on Human Rights, Sexual Orientation, and Gender Identity’ in the UNGA. This measure was sponsored by France and the Netherlands and introduced by Argentina. It failed, with one-third of (mostly European) members supporting it, onethird of states from Africa and Asia-Pacific opposing it, and a last third abstaining (D’Amico 2015). Following this defeat, a new declaration 17/19 was introduced in 2011 by South Africa in the smaller HRC, which surprisingly passed, given the human rights adverse background of some members. Observers highlighted, however, that this success had little to do with social learning or persuasion, but with an unrelated division of the Islamic and North African countries after the Arab Spring revolutions that made a vetoing bloc impossible (Freedman 2014). After this initial success, UN Secretary General Ban Ki Moon shifted to a broader information and framing strategy by publishing, together with the UN High Commissioner for Human Rights, the first worldwide report on SOGI discrimination and violence (UN Human Rights Council 2011). Based on the findings contained therein, he addressed UN states in an LGBTI panel in 2012, which was boycotted by the Organization of the Islamic Conference (OIC) and African countries with a walk-out. Thereafter, the 2013 ‘Free and Equal’ campaign not only highlighted LGBTI discriminations but also reaffirmed legal obligations arising from previous UN treaties and resolutions, linking SOGI rights to basic protections from violence, torture, and discrimination. Additional civil society advocacy by over 500 CSOs from over 100 countries urged the HRC to pass a second resolution in an effort to obtain sustained attention or an institutional mechanism to SOGI issues debated within the Council (ARC International 2014). As a result of lobbying by the potentially supportive states and civil society representatives, the 2016 HRC resolution 32/2 on SOGI protections added the institution of the independent expert on SOGI to assess and review UN member states in terms of LGBTI rights. His position was again

122  Multilateral promotion of LGBTI rights opposed by African and OIC member states, indicating that while a majority views such an office as essential to review country measures in this area, its legitimacy is still deficient. The HRC resolution passage was highly contested (23 in favor, 18 against, and 6 abstentions, see Human Rights Watch 2016), and the renewal of the SOGI Independent expert’s mandate is never ensured. Aside from a regular review of the state of LGBTI countries in UN member states, he delivers an annual report to the HRC and to the UNGA. Although the incumbent Costa Rican expert Madrigal-Borloz received a renewed three-year mandate in 2019 with a slightly higher number of countries voting for him, there were also ten hostile amendments placed to weaken his position. Moreover, in 2020, Sweden presented a revised, symbolically important Extrajudicial, Summary, or Arbitrary Executions (EJE) resolution to the UNGA. Because it is the only UNGA resolution including an SOGI reference in it, an amendment to eliminate the term was introduced by opponents, which failed with 94 states against the SOGI removal, 40 in favor, and 21 abstentions (Outright Action International 2020). Despite these incremental institutional advances, it becomes apparent that the slow progress on LGBTI rights at the UN remains volatile for the foreseeable future. Throughout the incipient institutionalization of SOGI rights instruments at the UN, EU member states were never in the opposition – few may have abstained at times – but voted for a greater expansion of said rights. A rise in populist governments in the EU could, however, change those bloc dynamics and lead to a weakening of the EU’s standing and of SOGI supportive positions in UN institutions (Voss 2018). Most EU states are the backbone of the 2008 founded UN Core Group, an informal group of 33 supportive countries (as of 2020), plus the EU delegation, the UN High Commissioner for Human Rights and two NGOs, Human Rights Watch and Outright Action International. These collaborate to identify and utilize opportunities to increase the visibility of SOGI issues and mainstream equality through UN processes. OutRight, based in New York City, was instrumental in founding the group and serves as its secretariat now. New states are now only supposed to join the Core Group as Global North/South pairs – Nepal and Iceland did so in 2020 – to avoid the impression of SOGI rights being exclusively a Northern concern as well as to link them more strongly to development outcomes (Outright Action International 2020). Somewhat inconsistently, however, the European pair Malta and North Macedonia joined in 2021. Tellingly, the UN Core Group members consist to about half of West European EU countries with the other half stemming from Latin America, plus Australia, and Japan. This combination of Western EU states with some of the more progressive democracies aims at further advancing LGBTI rights across UN institutions. Yet, its composition also shows a lack of participation of Central- and East European EU states as well as states from Africa or the Asia-Pacific – with the exception of Japan. Given that there are close to 200 UN member states, 15% of those from selected regions likely won’t have the same impact as larger and

Multilateral promotion of LGBTI rights  123 broader cross-regional coalitions. The same dynamics exist in a similar state alliance founded in 2016, the Equal Rights Coalition, which consists of 40 largely European and Latin-American members, with the Netherlands as foundational sponsor. In regard to UN programs, 12 UN entities produced an unprecedented joint statement in 2015 calling for an end to SOGI discrimination across the globe (OHCHR 2018). Among the most visible LGBTI instruments at the UN, in which the EU and its member states are influential stakeholders, are the UN Development Program’s (UNDP) human rights-based approach. The UNDP adopted a new LGBTI Inclusion Index, which intends to measure LGBTI inclusion globally as part of the Sustainable Development Goals to be achieved by 2030. The index was authored by U.S.-based scholars, and three mainly Northern NGOs, Outright Action International based in New York, ILGA, and the Swedish Federation for LGBTI Rights were chosen as the main liaisons for the development and dissemination of it. Moreover, the World Bank, responsible largely for development financing, founded in 2016, a small SOGI task force of individual staff to generate data to measure the economic and developmental costs of LGBTI exclusion. At the same time, it also established a (U.S.-native) Global Advisor on SOGI issues, who advises the Bank’s entities on LGBTI-related topics. In this sense, UN programs such as UNDP or UNAIDS, despite the absence of a firm legal base for SOGI rights, have increasingly recognized and promoted these issues within their activities (Oestreich 2018). It is more difficult to establish the influence of the EU, or its constituent member states, in these programmatic instruments, but it is apparent from the above that, at a minimum, these initiatives originated largely in the Global North, with substantial EU influence. Overall, Europe evidences a pronounced ‘state-norm entrepreneurship’ (Bonna Nogueira 2017) by EU-based states that collectively aim to advance LGBTI rights in the UN system, similar to the more recently democratized Latin-American states that aim to profile themselves internationally as Global South rights vanguards.

Norms in EU–UN relations Given the absence of unity on the issue of LGBTI rights in the UN, the only weak presence of legal rights provisions through HRC resolutions, and the lack of a centralized authority in the global community, more persuasive approaches based on human rights norms are chosen by the EU and its pro-LGBTI allies in the UN system. The universality of human rights, while representing an ideal type, has met criticism in the political and academic realities based on the definition through powerful states (Freedman 2014, 39). Despite the Western definitional hegemony regarding SOGI, marked differences in the breadth of SOGI conceptualizations exist between the EU and the UN. While, in the EU, a Eurocentric identity-based understanding prevails, similar discussions in the UN are more broadly conceived in their

124  Multilateral promotion of LGBTI rights linkage to reproductive rights and health and development matters (Correa et al. 2008). Yet, whereas ‘human rights’ are a more easily supported proposition because of their all-encompassing ambiguity, when it comes to rights for specific individuals or groups, such as women, indigenous, or LGBTI individuals, resistance by state actors increases. The relative recent emergence of LGBTI rights norms and their inclusion under the human rights umbrella resulting from the sexual revolutions of the 1960s by feminist and gay movements led to the global focus on individual human rights as part of the post-Cold War democratization dynamics (see Chapter 2). SOGI rights norms, however, are highly contested in the UN despite or possibly, because of the vocal and highly visible support of many European states. This activist critique is embedded in broader discussions about the universality of ‘newer’ rights that may not be explicitly enshrined in international law and raise questions about cultural relativism, according to which the cultural specificity of rights determine their domestic application and scope. Such interpretation, however, contradicts the UN HRC resolution 10/23 of 2009, which states that ‘no one may invoke cultural diversity to infringe on human rights guaranteed by international law’ (UNHRC resolution 10/23). Though, as the last part concedes, this admittedly makes rights attainment dependent on rights inscribed in international law, which is a contested issue at the UN as well. A more recent attempt at strengthening anti-gender positions, for instance by replacing ‘gender’ with ‘women’ in UN documents has become evident in an effort to delink the fate of women and LGBTI individuals, but also to weaken the slow but steady institutionalization of SOGI rights at the UN. The main normative actors in the UN institutions consist of state parties, with the addition of the EU in support of European state positions. International CSOs are of secondary importance and mainly involved in framing the agenda of human rights related negotiations. Only 20 SOGI CSOs of close to 4,000 total are accredited with the UN’s Economic and Social Council, and applications of new civil society groups have repeatedly been voted down, indicating a general resistance to these kind of activists in the UN system (Vance et al. 2018). ILGA as one of the few, and most influential, experienced difficulties getting accredited and was expelled in the early 2000s based on pedophilia-suspicion leveled against some of its federated member organizations. Although it has been reaccredited since 2011, its volatile positioning illustrates the struggle non-state actors face when trying to frame contested policy agendas in the UN setting. It also qualifies the well-known concept of the norm-cascade (Finnemore and Sikkink 1998), whereby norms emerge and then are internationally spread by multiple actors, as it becomes apparent that the international diffusion, internalization, and adoption of norms do not proceed as smoothly as expected. Aside from a reconceptualization of norm change to include disputes and argumentation involving states, courts, and civic actors, various models surrounding the idea of a norm backlash have emerged in recent years. Norm resisting anti-preneurs

Multilateral promotion of LGBTI rights  125 (Bloomfield and Scott 2017) that develop opposing counter-norms, as well as norm polarization as a process in which states dispute each other’s SOGI norms ( Altman and Symons 2016), contributed to an expansion of the various dynamics underlying international norm diffusion. Most of these norm dynamics are at play within the UN’s contestation over SOGI rights as well, though contestation and polarization clearly outweigh linear, consensual norm diffusion dynamics. In terms of how the EU promotes LGBTI rights norms, the institution was instrumental in the Core Group’s proposal to put the SOGI declarations on the agenda of the HRC. The EU is considered a privileged actor in UN affairs with enhanced observer status and thus envied by other regional actors. In addition, it can make use of the connections that each member states has, be they extra-EU neighbors, trading partners or former colonial entities. Yet, some have cited a lower EU profile as a winning strategy, as Kissack (2017) notes when analyzing the EU’s success in convincing other UN states of a moratorium on the death penalty. Despite the HRC’s credibility issues based on the dubious human rights record of many of its own member states – 9 of the 47 were cited as rights abusers in a 2017 UN report (The Independent 2017) – the advancing of SOGI declarations with a broad coalition might mitigate the tensions over rights norms. Much of this constitutive norm contestation harks back to the well-known arguments over universal, as opposed to culturally relative or contextual human rights, and the characterization of SOGI rights as private as opposed to public. Adding to these normative issues, the depiction of a Western-centric ‘LGBTI’ population may not be recognized everywhere, which is why SOGI is the preferred term and consistently linked to basic human rights. These still ongoing debates at the UN provide fertile ground for respective framing and agenda-setting by opposing and supportive parties (Donnelly 2002). The main procedural norm contestation revolves around the question if LGBTI rights, as newly visible provisions, are special rights for such individuals, or if the UN has the mandate to protect such rights under existing human rights treaties and resolutions (Bob 2012). In order to stress the latter viewpoint, in 2011, then-U.S. Secretary of State Hillary Clinton (in)famously proclaimed to the HRC that ‘gay rights are human rights’. While universalists and SOGI proponents such as most EU states argue the latter, often with reference to women’s rights, relativist opponents suggest the former, thus aiming to invalidate newly created protections. Newer research, however, cautions against using solely a SOGI lens as a normative indication for HRC votes, as country statements and resolutions evidence other factors, such as Asian states wanting to avoid interinstitutional tensions between the HRC and the UNGA, or country-specific post-conflict human rights considerations (Narrain 2021). Within this charged HRC environment, the OIC bloc with its 57 members as representation of Muslim states as well as the African states regularly contest any attempts to further the UN LGBTI rights agenda. So has

126  Multilateral promotion of LGBTI rights Russia, and to a lesser extent China, which were re-elected to the body in 2020. In the early 2000s, Russia, in particular, emerged as a key opponent, sponsoring three resolutions to advance a ‘traditional values agenda’, allying with OIC states and China (Wilkinson 2021). The U.S.’s departure under various Republican administrations has left its own normative void that the Europeans had to fill, and Biden’s administration will likely rejoin the HRC and ally with the EU. Moreover, important African members such as Nigeria have vocally opposed SOGI resolutions when they came up for debate in 2016. Then, diplomats of France, the Netherlands, and the UK were some of the strongest proponents, countering relativist arguments by opponents: Despite the draft resolution excluding references to new human rights law and advocates explicitly placing the draft resolution into what they perceived to be codified law, norm entrepreneurs from Latin America and the Western Europe and Others group had to consistently defend their position that SOGI rights are covered under current international law. (Voss 2018, 14) They fought amendments that would have weakened the proposed text and engaged in discussions over the need for and validity of a SOGI resolution. Altogether, the 2016 declaration was viewed as imposing by some relativists, setting the stage for future confrontations and leading to counter-proposals to protect families and the ‘traditional values of humankind’, among others (Ibid.). While the European states, together with the Latin-American group, certainly were able to push through the landmark 2016 resolution, it contributed to the hardening of contrarian positions among Council member states. In the larger UN setting, the resolutions passed in the UNGA could reasonably be described as the most universal form of policy as they are being negotiated and passed by all represented countries. Even though their status is legally non-binding, in contrast to Security Council resolutions, they express the larger collective consensus and have global symbolic and normative significance. Here as well, the similar culture wars prevalent in the smaller HRC tend to result in ‘camps’ that reflect opposing viewpoints on SOGI rights. When the first resolution that ultimately failed was discussed in the UNGA in 2008, the voting record showed the same North–South and East–West split, with two-third of the states assembled in the Africa and Asia groups voting against it and the remaining thirds abstaining. The Latin-American and West European states voted almost unanimously for the proposal (Monaco and Turkey abstained), but were outvoted by the larger Asia and Africa contingents (UN Voting Records 2021). When the resolution was reintroduced in 2011, an increase in polarization occurred in which several of the states in the non-Western regions moved from a neutral stance to opposing the SOGI declaration (D’Amico 2015). It was even suggested that the various criminalizing laws and constitutional same-sex

Multilateral promotion of LGBTI rights  127 marriage bans in African countries in the post-2011 period resulted from the larger global contestation and norm polarization at the UN (Human Rights Brief 2011). In sum, the constitutive as well as procedural norm contestation at various UN levels show that despite the apparent ‘victory’ in terms of passing the SOGI resolution in a minor UN body, the levels of polarization, prompted in large part by EU member states, have actually increased. The contestation of norms revolves not only about SOGI but also about the public definition of families, the relative importance of religion, and more broadly about power relations in the UN. The next section details some of the issues of the EU’s power struggle within the UN system.

Political issues in the UN system The political issues detailed here revolve around diplomatic matters regarding the structure of the UN system with regards to Europe’s recognition in it, based on its political history and present. The UN formed under U.S. guidance after the Second World War with the help of the victorious allies. It was created out of the political ruins of the League of Nations, an international organization based in Geneva, Switzerland, as a result of the Treaty of Versailles ending the First World War. With the increase in membership and change in composition caused by the decolonialization process in the 1950s and 1960s, the leading role of the allies remained, signified by them occupying four out of five permanent seats on the preeminent UN Security Council. Yet, the overall member state and thus, political balance in the UNGA shifted with decolonialization from the Global North to the Global South. Further evidence of this change can be found in the Southern-proposed New International Economic Order (NIEO) of the 1970s (Mingst 2011; Getachew 2019). Intended to transform the incipient global capitalist structure, it was rejected by the U.S. and European states as it would have challenged the U.S.-favored Bretton Woods institutions and weakened the dominant role of European states in their relations to former colonies. Moreover, the Washington Consensus in the 1980s provided for more influence of major neoliberal actors such as the U.S. or the EU, the latter which formalized its single market in 1992 to maintain their elevated position in the global economic system. The preeminence of the UN Security Council, reflective of the Cold War era with its two European representatives France and the UK, as well as European states’ role as leaders in many UN bodies together with the UN dependency on European financial contributions all contribute to continued unequal relations between the Europeans and the Global South. This sensitivity becomes particularly pronounced around issues in which the European states and the EU aim to more broadly diffuse their policies, be it in the failed negotiation rounds of the World Trade Organization, the volatile climate change Paris agreement, or the highly salient promotion of LGBTI rights.

128  Multilateral promotion of LGBTI rights Related to the previous point about the dissatisfying North–South relations in the UN, to which (West) European states contributed, colonialism remains a significant credibility issue in EU member states relations with former colonies. Many European members abstained when decolonialization resolutions were tabled at the UNGA in the 1960s (Fassbender 2004, 869). They used public relations efforts, as well as political strategies such as in the case of Spain and Portugal, declaring colonies internal provinces to take them out of the UN’s reach and to hold on to their ‘possessions’ (Standard 2018, 188). Despite providing the largest share of combined development aid in the world with over 55% of total global expenditures (Beringer et al. 2019), the dominant role of EU member states, and the EU as development channel in aid disbursement elicit accusations of paternalistic behavior. No matter if in the negotiations surrounding development aid, in which the EU applies political conditionality to pressure dependent states to follow the EU’s prescribed course of action (see Chapter 5), or in the use of development policies for self-serving policies such as market access or migration management, the EU is viewed not only by many governments in the Global South but also by some scholars as “entrenching neo-colonialism” (Langan 2015, 115). Especially, in post-colonial aid relations between European states and their former colonies, LGBTI rights feature heavily, not least because of British criminalization of same-sex relations during colonial rule. Aside from this historic residual sensitivity, the current structuring of the EU’s ODA and other policies that are increasingly linked to it, such as European security or migration policies, reproduce the power imbalances of the past. Hence these neo-colonial tropes are invoked when apparently unrelated topics such as LGBTI rights are visibly and vocally raised by the EU in today’s encounters with Global South states. For instance, when at the EU–Africa summit 2014 European Parliament President Schulz decried the state of LGBTI rights in Africa, African diplomats questioned the EU’s legitimacy to speak on such issues given the treatment of refugees at Europe’s borders (Euractiv 2015). Last, the way the EU is represented politically at the UN represents another institutionally sensitive issue. While there is now extensive coordination among EU member states in the run-up to vote on resolutions and other policies at the EU delegations in Geneva or New York (more below), until 2011, the EU did not have a separate platform to represent the Brussels institutions independently. Once it gained enhanced observer status with the right to speak at conferences and the UNGA after years of negotiation, its new role has raised some other interorganizational questions and sensibilities (Laatikainen and Smith 2017). A previous attempt to obtain enhanced observer status for the EU failed in 2010 when Global South countries pushed to defer the issue, with reference to Europe’s already outsize representation and leverage in UN bodies. Another question that was raised was about the knock-on effect this may have on other regional organizations and their quest for representation as well as the principal status reserved for

Multilateral promotion of LGBTI rights  129 sovereign states (ibid.). Hence the EU’s singular enhanced observer status augments the politicization of the EU’s political status. And giving the EU a special status relates to broader questions about reform needs in the UN(SC): what if the EU would replace the two seats held by France and the UK on the UNSC? This unlikely proposition, especially in view of the British exit from the EU, would probably just stir up insecurities among the major European powers without really leading to a more unified position; it would possibly even lead to a more EU-internally contested representation at the UN. This potential dilemma remains aside from the added complexity of having to officially coordinate UN-policy stances ahead of meetings with all EU member states so that the EEAS representation can fulfill its function at the UNGA. Similar issues are recognizable in the IMF, where a single Euro-representation seems to be contested by EU states as well with reference to the sovereignty of their national interests (European Parliament Research Service 2019). Taken together, it can be said that while the EU has formally enhanced its status, it has not necessarily done so in terms of recognition.

Fragmentation of the EU at the UN The third and the final set of challenges refer to the way in which interorganizational relations are structured between the UN and EU institutional contact points as well as among EU stakeholders. These issues do not primarily reflect upon LGBTI rights specifically, but represent more generalized structural constraints in relations between the EU and its manifold multilateral partners. These, however, make the development of coherent policy strategies more difficult. The following paragraphs detail the EU’s institutional fragmentation of powers through the representative and executive functions split between the EU member state representatives assembled in the EU Council’s Committee for Human Rights (COHOM) on the one hand, and the diplomatic EEAS representatives on the other, which somewhat weakens a unified approach. The EU Commission and the Parliament have less of an engagement in EU–UN relations as they are predominantly focused on EU-internal LGBTI affairs (see Chapter 3) or on the EU’s relations with neighboring and accession countries (see Chapter 4). An exception is the Parliament’s LGBTI Intergroup, which monitors and advocates LGBTI rights beyond EU borders and in the past has more often appealed to UN bodies. Yet, with the establishment of the EEAS after 2011, the Parliament concentrates more on its core area in and near the EU. It is not only fragmentation within the EU but also the UN’s own organization into regional groups that potentially impedes a more focused engagement. EU member states in the UN are split in the Western European and Eastern Europe groups, the latter containing 11 of the 27 members. However, while this may have been more problematic in the past, the post-Lisbon establishment of the EEAS and its attempts to unify external EU representation through regular member-state consultations have mitigated some of the diverging bloc voting issues.

130  Multilateral promotion of LGBTI rights In terms of the EU’s member state preparations, the EU’s COHOM Committee is made up of national expert responsible for compiling human rights statements to be voted on by member states and resolutions to be presented to the UNGA or the HRC. It is also the body in charge of the EU’s socalled ‘Human Rights Dialogues’, a “soft-power and non-coercive foreign policy tool” (EU Frame 2016), which involves over 40 countries worldwide engaged by the Union over right issues. In those exchanges, regular references to the HRC’s Universal Periodic Review are made by the EU, and other non-state actors can also provide input. There seems to be a debate, however, about the effectiveness of this quiet diplomacy instrument as it may afford trust-building privacy on the one hand, but also appears as a ‘fig leaf’ by activists who want to see public criticism and engagement. Using the high-profile case of EU–China dialogs, Kinzelbach (2014) views the EU’s impact in this activity area as weak, if not counterproductive to rights attainment. This EU working group is designed to develop an EU-internal consensus that can then be relayed to the UN level, though, as a Council body, it remains firmly within the purview of the EU foreign ministries. These cooperate with the EEAS office at the UN Headquarters in New York or the delegation in Geneva. Empirical investigations show that the number of statements made, or resolutions introduced by EU member states, has dramatically increased compared to the EEAS. The latter only advance proposals that have a chance of winning, and given the EU’s minority status in UN human rights institutions, it ends up being outvoted in about a third to half the time. Indeed, as a result of the EU being viewed as visible and powerful, other groups coalesce in opposition so that paradoxically, the EU’s actorness ought to be softened (Smith 2020). Since 2009, when the Lisbon Treaty was ratified that allowed for the 2011 approval of the EU’s enhanced observer status at the UN, the EEAS has taken a more direct role in the coordination of member stances by preparing common EU statements. In fact, the Lisbon Treaty obliges member states to channel common interests when dealing with other international organizations (Art. 34 TEU). In practice, that means: the Union Delegation heads the EU internal coordination in the Human Rights Council (HRC), leads informal consultation and intervenes in interactive dialogues in the Council. Newly established actors, such as the EU Special Representative on Human Rights, address the HRC. (European Parliament Research Service 2020, 15) But given the UN’s statist organization, the aforementioned reluctance by national diplomats to formalize too many common resolutions becomes significant; especially when these may not winnable or even EU-internally consistent, for instance, when it comes to prostitution or LGBTI rights. In the EU’s 2019 HRC statement covering current human rights issues in various countries across the globe, SOGI rights were only mentioned in reference

Multilateral promotion of LGBTI rights  131 to Russia (EEAS: HRC 41 – EU Statement 4), indicating a downplaying of SOGI. Adding to that representational ambiguity, each EU member state has individual relations with third countries that may be called upon in resolution negotiations. The EU’s institutional rigidity when it comes to putting proposals forward, coupled with the limited time for outreach to non-EU partners given the internal consultation requirements among the 27 states before each vote result in an overall deficient output in terms of human rights (Smith 2015). Accordingly, others have advocated for the EU to retain their ‘multiple voices’ so as to avoid a hardening of bloc competition between the West against the Global South and instead recommend to establish “fluctuating coalitions that are cross-regional” (Wouters and Meuwissen 2013). While the EEAS has indeed been able to prepare and produce more joint interventions and resolutions at the Human Rights Council, the aforementioned issues remain independent of any national splits or the increasing convergence pressures a common EEAS stance necessitates. The EEAS has set up representative offices in New York and Geneva, and it is in the latter where the HRC provides a platform for the EEAS to be an important interlocutor. Yet, while the office appears quite active, it does not replace the representation of EU embassies there, and the relatively small office with about 25 members manages the channeling of demands from its member states, tries to engage with countries across the globe, and interacts with the various UN bodies and programs at the same time. Needless to say that even with the progress in coherently formulating EU human rights strategies over the past decade and the ensuing increase in representative function of the EEAS offices, the executive roles providing sovereign voting power by member states remain firmly with member state governments (as evidenced by empirical studies, see Hug and Lukács 2014). It would be unrealistic to expect that to change in the near to medium future, as the discussions surrounding a single EU seat have seldom suggested replacing sovereign executive functions with EU-level voting power. In that sense, the EEAS and other EU diplomats (such as the EU Special Envoy on Human Rights) are important auxiliary support structures as they amplify the voice of individual states. They cannot, however, replace sovereign decisionmaking within the statist UN setting.

The EU and other intergovernmental bodies In the following brief sketch, the relations with other potential cooperation partners, the Bretton Woods institutions IMF, WB, and WTO provide more narrowly defined arenas in terms promoting LGBTI rights norms. They can in theory, however, offer additional contact and relay points for norm diffusion processes. Based on their organizational goals, the IMF and the WTO have limited impact in this regard. The World Bank, which awards development loans to the Global South, has repeatedly been criticized for leaving out human rights considerations in their developmental framework.

132  Multilateral promotion of LGBTI rights Accordingly, in 2014, the Bank met for the first time with LGBTI activists and co-sponsored a study quantifying the negative economic impact of LGBTI discrimination. In 2016, it established its first SOGI global advisor for all WB programs and created a pilot data collection program in selected countries. These include somewhat incoherently the Balkan states, where the EU is already quite active given these countries’ accession trajectory. In line with the UN system, the Bank relies on developmental and public health-related justifications to support SOGI rights. Despite its increasing rights emphasis, the Bank has a developmental mission that is separate from the EU’s broader one. It can exert significant leverage if a country is held accountable for its treatment of LGBTI individuals in the context of receiving development loans, for instance when it held back aid to Uganda after the passing of the LGBTI criminalization law there. Furthermore, its focus on LGBTI rights provisions in its loan policies has been met with resistance from the Global South as well, based on its conditionality and neoliberal orientation (see Chapter 5). Thus, it seems unlikely that a stronger cooperation between the EU and the Bretton Wood entities will go beyond any level that already exists on a broader UN level. On the other hand, the Bank has a wider reach than the EU, in that it can more swiftly leverage sanctions or press for adjustments to existing policy implementation on the ground. These pressure tactics can backfire, however, in that the WB may be viewed as an interventionist neoliberal tool of the West, infringing on the sociopolitical sovereignty of Global South countries; with a corresponding build-up of alternative development institutions such as the Asian Infrastructure Investment Bank led by China. Finally, the exchanges with other regional blocs such as Mercosur, the African Union, or ASEAN are marked by heterogeneity of those regional associations in terms of their acceptance of LGBTI rights as well as in their relations with the EU. Comparable ‘culture wars’ of those in the UN HRC play out in the EU’s norm negotiations with selected regional organizations such as the African Union. At the same time, a regional buildup of rights declarations is recognizable in the African Charter on Human and Peoples’ Rights, or the Organization for American States, which have both adopted their own SOGIE resolutions. These regional provisions and fora, while still timid in terms of SOGI rights promotion, represent emerging indigenous institutions to push back against the alleged Euro-centricity of those rights (Mbaru et  al. 2018). In addition, as Freedman (2014, 160–161) points out, governments may more readily comply with regional rights mechanisms because they are more embedded in local practices and norms and because accountability pressures from neighbors tend to be more effective. Whereas the 55 African Union members are sensitive given historical and contemporary experiences with the EU, the Latin-American governments with the recent exception of Brazil tend to be rather open to human-rights prescriptions in bilateral treaty negotiations based on their relatively recent democratization. The ten South-East Asian ASEAN members are quite diverse in terms

Multilateral promotion of LGBTI rights  133 of domestic human rights conditions and pronounce a rather collectivist understanding of rights. Moreover, they are increasingly influenced by their dominant neighbor China, which does not attach human rights conditions to its loans and grants. The EU conducts regular Human Rights Dialogs with the member states of these bodies but also joint summits with the regional organizations themselves. While such meetings are a good way to establish common policy positions between the EU and its counterparts, human rights issues are sensitive topics there and are sometimes rebuffed as the 2014 EU–Africa summit conflict over LGBTI rights or the 2017 conflict over migrant rights have shown. Somewhat ironically, then, it appears that the elevated EU–UN relations may deter a more substantial engagement of the EU with other regional organizations (Kiel and Campbell 2019).

Conclusion As should have become evident, the UN features an even greater SOGI rights norm contestation process than is occurring in the EU. Yet, the UN system constitutes a more credible platform when negotiating the universality of human rights for LGBTI individuals. One of the major issues in this respects are the access to and strategic use of other IGOs by the EU when promoting LGBTI rights internationally. EU access to UN organizations or other regional institutions is generally not a constraint in itself, although the manner of access seems to matter, as the enhanced observer status in the UNGA contrasts to the more member-based access points provided in other fora, including the HRC. In terms of strategic policy creation, the question of coherence is significant, given that there often are a number of related policy areas that need to be assessed and implemented simultaneously in UN processes (Gebhard 2017). While the EU institutions over time pursued greater policy coherence through member state and interinstitutional consultation, deeper normative, political, and structural issues persist. These can lead to disagreements and tensions between EU member states, EU states and UN members, and between the EU/EEAS and UN bodies. The intergovernmental nature of EU foreign relations means that each state is the primary driver of its national interest in the larger UN setting. Despite the EEAS’ track record to put forth consensus-based declarations at the HRC, indicating improved EU-internal consultation and coordination, the EU’s relations with other UN members, or UN bodies, remain volatile when it comes to LGBTI rights promotion. As has been shown above, the normative, political, and organizational issues in the EU’s relations with UN states and bodies constrain the extent to which the EU is able to diffuse their LGBTI rights objectives. The normative issues outlined refer primarily to the imbalance of Northern states’ imprint on global LGBTI reforms, in which hard-fought gains come with the costs of increasing polarization and contestation. The political ones highlight the elevated status that the EU as an enhanced observer has at

134  Multilateral promotion of LGBTI rights the UN, and the way in which such positioning leads others to view the EU as primus inter pares, and potentially neo-colonially dominant. Hence it is not only the visibility of SOGI, but also of the EU’s actions, that other UN stakeholders oppose, leading some analysts to recommend a downplaying of the EU profile. Last, organizational issues persist as the EU’s fragmented political power is split between the executive member states and the representative EU institutions, including the EEAS. This divide complicates matters when more LGBTI-progressive member states (such as the Northern ones in the EU) aim to set an agenda for EU institutions, which has its own autonomous agency and rules, while at the same time being constrained by more conservative, populist or outright homophobe EU governments (such as can be found throughout the EU nowadays). This is not to say that the coordination between the EU institutions, their pro-LGBTI governments, and the UN members and institutions does not bear fruit. Even where state-to-state relations may become more contentious, the EU’s support for the UN system and its HRC, as well as SOGIbased rights promotion efforts in UN programs, aids in the incremental advance of more inclusive UN policies. This approach is also favored by a large majority of global civil society groups active in the UN’s Economic & Social Committee as well as in countries whose governments are repressive or homophobe. Analog to what Thoreson (2014) has shown in his analysis of LGBTI rights organizations, it may be more useful for supportive states to highlight the human rights for LGBTI individuals connected to already codified rights contained in the UNDHR such as freedom of association or expression. It is however, problematic, if the forceful liberal promotion through the EU and selected allies leads to a further politicization of bodies such as the HRC, the SOGI Independent expert, or LGBTI rights-based policies, as this would be counterproductive to Europe’s well-meaning efforts.

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Multilateral promotion of LGBTI rights  137 Smith, Karen. 2015. “The EU as a Diplomatic Actor in the Field of Human Rights”, in Joachim A. Koops and Gjovalin Macaj, eds. The European Union as a Diplomatic Actor. Berlin: Springer, 155–177. Smith, Karen. 2020. “EU-UN Relations in the Policy Field ‘Human Rights’”, Open Access Lecture, https://wb-ilias.uni-freiburg.de/goto.php?target=st_37214, accessed January 18, 2021. Standard, Matthew. 2018. European Overseas Empire, 1879–1999. Hoboken, NJ: Wiley Blackwell. Swiebel, Joke. 2009. “LGBT Human Rights: The Search for an International Strategy.” Contemporary Politics 15 (1): 18–35. Thoreson, Ryan. 2014. Transnational LGBT Activism: Working for Sexual Rights Worldwide. Minneapolis: University of Minnesota Press. UN High Commissioner for Human Rights (UNHCHR). 2018. “The Role of the United Nations in Combatting Discrimination and Violence against LGBTI People – A Programmatic Overview”, https://www.ohchr.org/Documents/Issues/ Discrimination/LGBT/UN_LGBTI_Summary.pdf, accessed January 18, 2021. UN Human Rights Council. 2011. “Report of the United Nations High Commissioner for Human Rights”, https://documents-dds-ny.un.org/doc/UNDOC/GEN/ G11/170/75/PDF/G1117075.pdf?OpenElement. United Nations. Secretary Ban Ki Moon’s General Remarks to the UN Human Rights Council. 2011. https://www.un.org/sg/en/content/sg/statement/2011-01-25/ secretary-generals-remarks-human-rights-council, accessed January 18, 2021. UN Voting Records. 2021. https://www.un.org/en/ga/documents/voting.asp, accessed January 18, 2021. Vance, Kim, Nick J. Mulé, Maryam Khan and Cameron McKenzie. 2018. “The Rise of SOGI: Human Rights for LGBT People at the United Nations”, in: Nicol, Nancy and Adrian Jjuuko, eds. Envisioning Global LGBT Human Rights: (Neo) colonialism, Neoliberalism, Resistance and Hope, London: Institute for Commonwealth Studies, 223–246. Voss, Joel. 2018. “Contesting Sexual Orientation and Gender Identity at the UN Human Rights Council.” Human Rights Review, 19: 1–22. Wilkinson, Cai. 2021. “Intersection of ‘Traditional Values’ and LGB Rights”, in: Gerber, Paula, ed. Worldwide Perspectives on Lesbians, Gays and Bisexuals, Santa Barbara: Praeger, 360–376. Wouters, Jan and Karen Meuwissen. 2013. The EU at the UN Human Rights Council: Multilateral Human Rights Protection Coming of Age? Leuven Working Paper 126, https://ghum.kuleuven.be/ggs/publications/working_ papers/2013/126WoutersMeuwissen, accessed January 18, 2021. Zielonka, Jan, ed. 1998. Paradoxes of European Foreign Policy. Berlin: Springer.

7

Conclusion Rethinking and reimagining international LGBTI rights promotion

I wish I could abort my government. (Demonstration poster at the largest Polish anti-government protest since the end of communism, following a restrictive anti-abortion court judgement, October 30, 2020.)

The above quote is emblematic of the link between women’s reproductive rights, sexual orientation and gender identity (SOGI) rights, and governmental accountability. It highlights how courts, such as those in Poland that are currently not truly independent, can undermine the judiciary oversight of contested policies needed in a liberal-democratic system. It also illustrates the tight connection between women’s and LGBTI rights and broader gender equality, evidenced by the Polish government’s objection to the new EU Action Plan on Gender Equality and Women’s Empowerment in External Relations, insisting on the use of the binary ‘equality between women and men’ instead (Politico EU 2020). Poland is, as the current top recipient of EU cohesion funding, not only on the verge of losing credibility among other EU members but is also leading the country into a polarized governance crisis evidenced by ongoing demonstrations. With regards to relations among EU states, rule-of-law injunctions in Poland and Hungary have led the EU to start the so-called Article 7 process against Poland, which requires governments to justify political–legal actions that are perceived to breach EU treaties. As a response, the Polish and Hungarian governments initially vetoed the EU’s rule-of-law monitoring mechanism for future fund disbursements, which in turn reduced political support by other member states. After a month-long resistance by both governments, a compromise solution allowed them to approve the rule-of-law mechanism for future EU budget appropriations, indicative of an increasing isolation of the Polish and Hungarian governments. In terms of the domestic crisis, the abortion prohibition that was signed into law based on a U.S.-sponsored international anti-abortion initiative (Euractiv 2020) has manifested some of the largest protests in Polish history in over 150 locations and produced a strong social movement that combines progressive forces and is led by women’s DOI: 10.4324/9781003054627-7

Conclusion  139 and LGBTI rights activists (Chmielewska-Szlajfer and Dunin-Wąsowicz 2020). Aside from the fact that 80% of Poles (and 85% of Hungarians) have expressed their desire to remain in the EU and over half of the population supports the linking of EU funds to the rule of law (ILGA Frontline 2020), Polish business associations have issued warnings to their government in unprecedented steps indicating further domestic opposition. Taken together, this vignette illustrates how the political contestation of LGBTI rights is embedded in a broader democratic regression that forces, but also enables, CSOs to build cross-issue alliances. This concluding chapter broadens the scope of analysis to make the case that the status of LGBTI rights needs to be approached in the context of larger socio-economic and governance changes and recapitulates some of the main lessons learned from the analyzed case studies. As the preceding chapters have revealed, considerable constraints such as the volatile standing of EU LGBTI policies (within the bloc), rapid but only partial normative transformations (in the case of EU enlargement), limited incentives and selective engagement (in the case of EU Neighborhood Policy), post-colonial resistance and conditionality (in the case of development policy), and a politics of optics (in the case of LGBTI rights promotion at the UN) should prompt the EU to rethink existing promotion strategies. SOGI activists in Europe and elsewhere require sustained support as many are under attack from domestic and transnational opponents. Such support, however, should respond to CSO needs rather than EU objectives and be carefully calibrated so not to avoid the charge of being foreign-funded and influenced. When focusing on the institutional and non-state agents operating within these complex and sensitive contexts, the first step should be to acknowledge the EU’s ambivalent performativity, that is, the unintended consequences of its political agency, in its norm promotion attempts. Ranging from the EU’s selective trade and aid policies to the high-visibility and often self-serving Eurocentric objectives, the effects of such promotional policies may lead to geopolitical binaries, and a politicization and even securitization of LGBTI people. With this in mind, the following section summarizes the lessons drawn from the previous case analyses. Then the focus is broadened to foreground the broader democratic regressions or democratic ‘backsliding’, in which LGBTI rights are just one point of contention. The final section explores alternative perspectives that may prove more useful for the sustainable promotion of LGBTI rights.

Lessons drawn from chapter analyses In terms of the EU’s internal LGBTI policy incoherence noted in Chapter 3, it becomes apparent that, in order to project an impactful model externally, there needs to be internal coherence (of policies) and consistency (in application). The EU is not always a coherent actor in SOGI policies, despite having formulated common external guidelines and policy conditionalities,

140 Conclusion as long as there are member states that do not agree with, or do not apply, similar LGBTI rights policies internally. While more equality policies were established across EU members over the past 20 years with some surprising advances by Ireland or Malta, for instance, a number of governments have remained stagnant, including Italy and Greece, or have even preemptively limited legal and political rights provisions as in several CEE states. From basic hate crime prohibitions, which are still missing in a minority of states, to the full recognition of same-sex relations and adoption rights, which most of the post-communist member states lack and some constitutionally exclude, there still exists a substantial inequality in legal provisions and political outcomes across the EU (ILGA Europe 2020, see also the Rainbow maps in Chapter 3). There are also issues with the consistency of policy applications over time. Rather than converging on common LGBTI rights policies, a number of governments have taken regressive steps and aim to limit a potential expansion of such policies. Evidence can be found in the popular referenda or legal bills that have been introduced to constitutionally prevent more inclusionary policies. Especially for the newer member states, subsequent social learning and persuasion may take longer than is politically expedient. Part of the problem is that there was no real norm negotiation possible as these countries were largely absorbed into a pregiven West European membership format. The EU also has repeatedly applied a selective, politically expedient view of LGBTI progress in enlargement and neighborhood policy to certify those as compliant with its norms. While some improvements occurred there in terms of attempting to revise and mainstream human rights policies, a lack of implementation and resistance remain as well, which makes external norm promotion less valid and effective. With regards to the enlargement and neighborhood policies covered in Chapter 4, a distinct qualitative difference in terms of the achievement of LGBTI rights is noticeable. While fundamentally, the incentive of joining the EU sets in motion policy reforms and, to some extent, adaptation to pluralistic norms, this mechanism appears to be lacking in the more distant neighborhood. Even accession negotiations are fraught with issues of superficial ‘Potemkin’ adaptations from the side of the candidate countries, often with a corresponding lack of domestic internalization of tolerance norms. This process is reinforced by a selective monitoring of high-visibility and symbolic, rather than substantive, political progress by EU institutions – such as using gay pride marches as rights benchmarks. The tensions between Western and Eastern European member states over human rights and democracy illustrate the protracted nature of democratic consolidation and require a more reflective assessment by EU institutions and its member states. CSOs in accession countries are aware of this broader attack not only on LGBTI but also on other progressive groups such as environmental or migrant rights ones and grow increasingly disillusioned about the EU’s democratic stewardship role (ILGA Frontline 2020). In contrast, the ENP,

Conclusion  141 as a stabilization tool for 16 neighboring countries on the EU’s southern and eastern borders, contains insufficient EU incentives, is often sidelined by broader geopolitical events and lacks a country-specific differentiation of objectives. It also suffers from an ambivalent EU diplomacy toward these governments that, at times, appears to prioritize stability over the uncertainty of democratic transitions, evident in the continued funding of (semi) authoritarian systems (Godfrey and Youngs 2019). Particularly, the MENA region is characterized by EU security concerns over immigration and terrorism. Pressure on or, alternatively, support of governments tends to be less effective than investment in domestic civil society groups to improve liberal-democratic goals. Such direct CSO support is more accepted in affiliated accession candidates and ENP member states than elsewhere. Recognizing this, the European Commission’s post-2020 EU budget proposal contains a new single instrument, the Neighborhood, Development, and International Cooperation Instrument (NDICI), which would set aside €1.5 billion ($1.7 billion) for human rights and democracy and another €1.5 billion for civil society, out of a total of €68 billion ($73 billion). This represents a 15% increase for democracy and human rights and a 6% rise for civil society, although a significant portion of it is to achieve technical, rather than political objectives (Godfrey and Youngs 2019). In the EU’s relations with the Global South, the question of the effectiveness of political conditionality to incentivize countries to follow its human rights guidelines or, alternatively, deter them from rights-restrictive policies, is central (see Chapter 5). This does not only concern the use of political conditionality as a questionable policy tool for norm promotion in the EU’s largely asymmetrical relationship with developing countries but also the way in which they are (in)consistently applied. In this sense, Saltnes and Thiel (2021) have posited a differentiation between the contestation of the content of human rights norms embedded in aid agreements and the application of conditional aid provisions or cuts. A more fine-tuned EU reaction according to the nature of the norm contestation may evade the build-up of tensions and a broader homophile/phobe binary. Moreover, in today’s age, marked by pandemics and increased climate vulnerability, a political conditioning of aid may further exacerbate global and domestic inequalities. Instead of aid cuts, for instance, a redirection of aid to civil society may be appropriate, which some European donor governments have already implemented in recent years after consultations with CSOs (Saltnes and Thiel 2021). Walton (2015, 2780), however, notes that “both democratic and authoritarian governments are increasingly incensed at western donors’ attempts to reshape local politics and values through INGOs”, which can in turn lead to limitations placed on them. Unlike in accession or Neighborhood Policies, in more distant settings that are often characterized by residual post-colonial ambiguity, even soft power measures can result in resistance. Just as with Neighborhood Policies, more expressly self-interested relations are constructed by the EU with the primacy of EU trade and security objectives,

142 Conclusion including the introduction of Economic Partnership agreements over the past two decades, and the establishment of a migration-focused Trust Fund for Africa in 2015. Adding to this complexity, the geopolitical competition by less norms-oriented actors, such as China, means that human rights issues with development counterparts are seldom substantially enforced, but rather addressed in dialogs. While the latter is theoretically important in engaging norm-resistant counterparts, their effectiveness in furthering rights norms is questionable. The EU’s rights promotion efforts in Global South countries will likely continue to remain sensitive and volatile, given the aforementioned reasons, but a less explicit focus on and pressure regarding LGBTI rights, combined with a strategic broadening of EU foreign policy to prioritize democracy support across governance levels, may mitigate some of the post-colonial culture wars. Finally, the EU’s strategies and relations in UN institutions, such as the UN Human Rights Council, while helpful in promoting LGBTI rights globally, are also fraught with normative as well as performative issues (see Chapter 6). The EU’s normative discourse surrounding LGBTI individuals is not sufficiently effective for garnering support from states or regions that have different conceptions of such individual and group rights and feel that European states impose, rather than promote, these rights. Moreover, organizational issues emanate from the fragmentation of EU representative and executive functions. In the UN, the EU member states pursue their own policies in addition to the EU institutions, such as the EEAS, which results in a drawn-out coordination process among the 27 states. The enhanced observer status of the EU also engenders certain envy over the exceptional status provided to the EU. The UN venue is well placed to diffuse LGBTI-friendly policies more broadly; yet, the ambiguity with which the majority of UN member states support Eurocentric LGBTI rights declarations and policy strategies makes it a volatile forum. This is especially significant since cultural-religious and autocratic opponents aim to delegitimize rights provisions with reference to the absence of SOGI characteristics in the UDHR and other conventions. The Human Rights Council can only be of limited importance in EU rights promotion efforts and cannot replace the bilateral exchanges with governmental and civil society partners across the globe. These have some success in connecting SOGI rights to more established rights, such as women’s rights using CEDAW, for instance. CSOs have more recently begun to collaborate transnationally to engage religious organizations over discriminatory views (the Human Rights Campaign as well as ILGA Europe developed specific campaigns). Be it in the use of online propaganda or the adoption of restrictive laws, an internationalized counter-norm promotion strategy by opponents counters progressive norm diffusion in what Altman and Symons call ‘queer wars’ (2016). Investigative analysts have uncovered a largely U.S.-sponsored global network of financing rights-adverse lobbyists. They have produced evidence of over $280 million spent by U.S. ultra-conservative groups to influence policy makers

Conclusion  143 globally, with most of the money going to European homophobe causes, followed by African ones (Open Democracy 2020). Alliance-building in UN institutions with other progressive states alone may thus not yield the expected results. Beijing’s pragmatic stance, combined with Russia’s and the OIM’s normative counter-narratives and a generalized residual anticolonial stance in the Global South, indicates that the EU may need to end up lowering its profile rather than strengthening a rights-based one. Hence a stronger cooperation between the EU and UN entities will not necessarily provide for a global reinforcement of Eurocentric LGBTI rights norms.

From rights to raison d’état: reflecting on the EU’s liberal illusion It should have become evident throughout this book that the contentious SOGI politics in the EU and elsewhere are both “trivial and pivotal in populist radical right politics” (Spierings 2020, 41). These types of morality politics or ‘moral panics’ (Herdt 2009) are not exclusively based on the religious-cultural nature of national conservatives, but are in large part determined by competitive political agendas and conflicts over the framing of moral–ethical issues. These have outsized visibility and political resonance because they ultimately point to broader questions surrounding societal organization under individual-collectivist as well as religious-secular norms (Engeli et al. 2012). In Europe and across the world, LGBTI rights have become a proxy-argument for or against human rights and, beyond that, for the acceptance of (neo)liberal-democratic pluralism of the Western, Eurocentric kind. While the EU aims to internally uphold rights in a number of areas, such as LGBTI or gender policy, it is unable to sufficiently address broader normative, democratic deteriorations related to xenophobia, populism, and, ironically, European integration. Moreover, it appears that various norm-antipreneurs have learned from the transnationalization of pro-LGBTI activists, as they have increasingly connected with similarminded forces across the globe to prevent further rights advances and promote authoritarian, nationalist viewpoints (ILGA 2020). Such a conceptualization is more comprehensive than the often-cited, yet problematically conceived, ‘backlash’ against expanded LGBTI rights. This notion is both theoretically limited in its assumed dialectic progression and empirically flawed (Paternotte 2020). Rather, regressive policies and reactions to the EU’s rights promotion attempts constitute a broader movement against democratic pluralism of various forms, be they SOGI or ethno-religious based. Conservative, religious, or geopolitical strategic opponents encourage democratic regression through the weakening of pluralistic discourses, policies, and structures. The opposition to LGBTI rights by EU member states governments such as Poland or Hungary, or by non-EU states such as Turkey or Brazil, should not be myopically treated as targeted human rights violations without considering the overall governance context.

144 Conclusion In the case of the U.S., we have noticed how instead of SOGI, race has become a salient focal point of populist opposition in the run-up to the 2020 presidential elections, whereas, in Poland, it was LGBTI and abortion rights, and in the UK, EU membership and migration fears that dominated the discourse. In the latter case, ILGA Europe attests to a tripling of attacks on LGBTI individuals resulting from the populist discourse surrounding Brexit (ILGA Europe 2020), which illustrates the connectedness of apparently unrelated socio-political dimensions. The foregrounding of SOGI rights topics, while to some extent necessary to address inequalities, also serves opponents to distract from larger political polarizations over pluralist societies and politics. Politicized ‘culture wars’ surrounding LGBTI rights serve to manipulate citizens and to disguise semi-authoritarian policies, whether it is President Putin’s attempt to change to a self-serving constitution by a manipulated plebiscite in Russia, the Trump administration’s incitement of conflictive identity-politics in the U.S., Turkish President’s Erdogan’s conversion of the Hagia Sophia into a mosque, or Prime Minister Orban’s erosion of democratic safeguards in Hungary. SOGI issues may play a central or peripheral role in these political tropes and moves, but importantly, they aim to distract from actually occurring policy changes that advance authoritarian principles and policies. Global polarization over LGBTI rights in many cases may not specifically result from cultural protectionism but manifests as a revisionist reaction to the larger post-modern changes that have occurred in late/post-modern, neoliberal societies. These include increased socio-cultural diversity and pluralism, gender equality, secularism, and a weakening of national identities as a result of globalization. Within the EU, European integration represents an added contributing factor. Manners et al. (2020) use the term ‘ontological insecurity’ to describe the challenges of coping with fast-paced changes and generalized insecurities in Europe. Threatening toxic masculinities, national chauvinism, regressions toward traditional societal norms, and populist discourse and politics are all reactive responses to the aforementioned changes in private and public spheres. This suggests that a dedicated focus on just one sector such as LGBTI rights, without taking into account the broader destabilizing ramifications of late modernity’s (Giddens 1991) challenges, will likely yield limited results. The contention surrounding human rights promotion is connected to complex and context-dependent arguments about sovereignty, nationalism, religion, etc. that are highlighted as reasons for resistance, but that, in reality, often mask manipulative authoritarian or populist strategies. While these are most strongly pronounced by homophobe actors, homophile state actors or the EU can similarly end up politicizing norms for political gains. When EU institutions selectively approve of LGBTI rights maintenance in enlargement candidates for geopolitical reasons (see Chapter 4), or conversely overlook the state of SOGI repression in migrantsourcing or -hosting countries while securitizing them (see Chapter 5), they engage in similar manipulative strategies that politicize LGBTI rights.

Conclusion  145 At the risk of such politicization, SOGI issues are easily exploited by political actors in a performative manner since they readily connect to people’s everyday lived experiences, be they erotic or family-oriented in character. By playing up and focusing on these issues and responding in equal force, often instrumentalizing the rainbow flag, LGBTI individuals do not only inadvertently become pawns in a political game, but this hypervisibility also contributes to hiding other governance issues in the countries concerned. Visibility as part of symbolic politics often operates on the emotional, rather than the cognitive level, with a resulting contentious increase in the salience of these issues. Whether in counter-demonstrations to pride marches, the gender-conform need of trans* people to ‘pass’ as such, or the ambiguous recognition procedures for LGBTI asylum seekers, LGBTI rights are not only ‘hyper-visible’, but visibility politics also functions as a double-edged sword for societies. In the diplomatic realm, regimes of visibility produce gendered national conceptions or reinforce unequal power relations (Edenborg 2017). The highlighting of performative issues points to broader failures of domestic politics or, in this case, to the EU substantially engaging its counterparts, be it in the way corruption is still a major governance issue or pluralistic structures are weakened in politics and media even within the EU. All of this occurs on the backdrop of EU funding mechanisms such as internal cohesion funding or external development aid which, at times, sustain rather than address and thus help change countries’ problematic governance issues. Accordingly, the EU runs the risk of being perceived as hypocritical when speaking out against rights deteriorations in member states and becomes instrumentalized as apparent suppressor of sovereign democracy and an overly liberal promoter of non-traditional SOGI. Even beyond its borders, it runs the risk of being portrayed by Global South countries as a neo-colonial and neoliberal intervening force. In terms of potential change agents referenced in this book, Inglehart and Norris (2003) argued that the visibility and role of women in politics have changed over the past few decades through higher labor participation rate, higher relative economic independence from male-led households, and better education levels. The emergence of a distinct female vote bloc is also connected to the higher post-materialist values women tend to embrace compared to male counterparts, further increasing an attitudinal and voting gender gap on SOGI issues (ibid.). This provides an opportunity for LGBTI individuals and CSOs to not only follow in the historical emancipatory footsteps of gender equality movements in the public and political spheres but also ally with a politically emerging demographic that is by and large more supportive of SOGI concerns. In this sense, it would not only increase SOGI-sensitive representation but also augment the substantive inclusion of those topics in domestic and foreign policies. On the surface, more representation exists in public and private sectors, although despite an EU gender equality directive, women are still paid 15% less than their male counterparts for the same labor, on average (Arabadjieva 2021). In foreign

146 Conclusion relations, there have been noticeable strategic reorientations on national and EU-levels as well in the emulation of a feminist foreign policy over the past few years, with at least five (West) European states adopting such a stance (Wright et  al. 2020). It appears that the first female-led European Commission that was confirmed in 2019, while not quite gender-balanced nor ethnically diverse, has already put more emphasis on gender equality issues in and beyond the Union, including the EU LGBTI roadmap and the Gender Action Plan. In the process, resistance from a ‘toxic masculine’ disentitled minority is inevitable, as, for instance, in several CEE countries, from Poland to Italy, there has been a coinciding attempt to restrict women’s rights such as abortion at the same time as LGBTI rights are curtailed (European Parliament Research Service 2018). Yet, a concerted effort to elect more progressive female and LGBTI policy makers could provide added benefits and protections to both minorities. Given that these political strategies require complex changes in attitudes, Inglehart et al. (2017) prognosticated that states that develop into high-income countries embrace ‘individual choice’ rights including abortion, homosexuality, and divorce after a 40–50-year lag. While this generally bodes well for an eventual change in the more resistant member states, it also predicates it on economic security and implies a progressive linearity resembling modernization theory. Many CEE countries, as well as Global South states, still lack such economic conditions – the EU being one of the reasons for it – and thus declining support for rights norms in 12 of 15 post-communist states examined in this study was detected (18). More generally, EU institutions and member states are faced with post-modern governance conditions of borderless insecurities, the primacy of markets relative to politics and societal in/exclusions, in which the EU represents simultaneously a cause and an outcome. Women’s and SOGI rights are closely interlinked, and even though the former often appears preeminent based on broader and earlier agency, both seem to be contingent on the socio-economic contexts present in Europe’s late/ post-modern stage. Hence the perspective on unequal participation and uneven socioeconomic development needs to be expanded to include an intersectional view on inequality. Socio-economic inequality produces grievances and insecurities domestically and comparatively among states. Intersectional analyses that go beyond adding identity-based categories offer a more indepth analysis of the way societal relations, power, inequality, and social justice imprint on specific issues (Collins 2019). Whether in the way women are more visibly represented without substantive equality, the fact that LGBTI individuals of color are more exposed to discrimination or how member states in CEE have had to deal with shock liberalization and a domination of West European influence in the private and public sectors, these multifaceted changes produce more profound challenges than a narrow focus on SOGI issues suggests. The EU is unable to sufficiently contribute to the democratic consolidation of post-communist socio-economic structures,

Conclusion  147 an arguably complex process. In many cases, however, it did not mitigate challenges to democratic consolidation, but rather amplified issues. With the tacit understanding that cohesion funding and social learning may help to reduce the resulting governance issues, the EU expected an adaption to its normative and political expectations, a so-called ‘Europeanization’ of states. This did not happen to the extent that was anticipated, producing uneven development in political, economic, and societal terms. To illustrate, CEE parties that once embraced the liberalization of economies during EU accession now attack those neo-liberal structures as part of their nationalist program and connect those to an expanded policy scope in the interest of national survival ranging from social policy to foreign policy (Varga 2020). Such EU-internal socio-economic inequality, in addition to slower moving adaptation processes to EU governance, is largely responsible for the lagging transformation of CEE countries in becoming neoliberal, pluralistic rights champions. In those states within and outside the EU, a fatigue with (neo)liberal transformations and their effects, following an imperfect post-socialist transformation or post-colonial independence, has set in. In fact, for the first time, since 2001, autocracies consist of the majority of the world’s governments, and Hungary is singled out as Europe’s first electoral authoritarian regime. At the same time, pro-democracy protests and resistance by mobilized individuals and civil society has been growing (V-Dem Institute 2020). A similar global ‘retreat of democracy’ as measured by the Economist Intelligence Unit (2020) reports the lowest levels of democratic indicators since the early 2000s. The populist–nationalist forces that have emerged across the globe, including in selected European states ranging from Italy to Poland, provide further evidence of democratic retrenchment. Governments not suffering from democratic backsliding are often too pre-occupied by the various financial, environmental, refugee, or health-crises to counteract a regression in democracy and human rights elsewhere. To the extent that the EU, as the preeminent regional IGO, can maintain or, in the best case, promote, democratic norms, it is well advised to do so in a manner consistent with its values. The “EU cannot credibly support democratic change and engagement with civil society abroad while those values suffer at home” (Balfour 2020). Critical self-reflection and a review of its own practices are required. While it is important to view CSOs as important, local change agents, their activities need to be viewed in a more contextualized manner, taking into account the broader repercussions of EU support – as funding and public framing can make them targets in authoritarian systems – and linking those more strongly to resiliency-oriented democracy promotion (Youngs 2020). There are positive signs of a stronger linkage of human rights and democracy matters, with the adoption of the EU’s third ‘Human Rights & Democracy Action Plan’ spelling out the main areas of concern for its foreign policy in this regard for the years 2020–2024 (see below). Recognizing the linkage of rights and democracy, the new European Commission’s plans

148 Conclusion are ambitious, maybe overly so […] the EU Action Plan on Human Rights and Democracy, the EU “Magnitsky Act”, or the Rights and Values Program are just some of the new initiatives in the offensive against democratic backsliding, the erosion of the rule of law, or the shrinking space for civil society at both levels. (Havlicek 2020) The ideal of democracy itself, however, always remains imperfect and a Weberian ‘ideal’ type, which means that variations of democratic governance need to be acknowledged and tolerated, but also addressed. Just as LGBTI individuals do not only singularly express their SOGI in its multifaceted complexity, so too are nations not uniformly progressive or conservative. Even more repressive countries are made up of multitudes of sub-cultures, associations, and interest groups. These may embrace and take on certain aspects of international LGBTI rights norms, while alternatively rejecting other. This contingency, together with the performativity of advocates, opponents, and domestic and international public policy institutions, direct the trajectory of norm promotion processes in and beyond the EU. If there is a common EU norm regarding inclusive democracy, it is the ambition of striving toward an improved democratic quality over time.

Another SOGI politics is possible: reimagining international rights promotion In 2020, EU institutions and member states were negotiating the upcoming multi-year budget, which includes substantial civil society support and funding for human rights and democracy policies across the globe. Around $1.5 billion for each of these policy sectors are part of the prospective budget for 2021–2027. Such massive funding, while essential for many activists around the globe, also potentially politicizes activists in their home countries and the EU’s relationship with its governments (Youngs 2020). Moreover, the third ‘EU Action Plan for Human Rights & Democracy 2020–24’, developed jointly by the European Commission and the High Representative for Foreign & Security Affairs, aims to focus on human rights defenders and make those twin goals a strategic objective of EU foreign policy. Its main objectives are to protect and empower individuals; build resilient, inclusive, and democratic societies; promote a global system for human rights and democracy; address challenges posed by the use of new technologies; and deliver by working with a range of (non)state and intergovernmental actors (European Council 2020). In it, LGBTI individuals are mentioned as one of the many addressees, alongside women, children, the elderly, the Covid19-vulnerable population, etc., indicating the ambition to advance universal rights for everyone. Yet, human-rights CSOs, while generally supportive of the inclusion of emerging challenges such as new technologies, environmental changes, and shrinking civil society space, have criticized

Conclusion  149 their limited involvement in the planning of the report and the lack of transparency with regards to country-level assessments (European Democracy and Human Rights Network 2020). Similarly, with the adoption of a Gender Equality Action plan 2021–2025, the EU commits to redirect substantial resources for the achievement of gender equality in foreign relations that includes sexual and reproductive rights. Yet, feminist scholars caution to not “revert to a white liberal feminist conception of states in the Global North ‘saving’ women in the Global South” (Wright et al. 2020). In these instances of ‘damned if you do, damned if you don’t’, the EU’s ongoing worldwide support of human and LGBTI rights defenders as an expression of its core values, ambitions, and interests poses a complex challenge for the bloc. Stipulating a holistic approach, Weitz (2019), in his rights historiography, reminds us that “human rights advances emerge out of a confluence of popular struggles, state interests, and the workings of the international community”, cautioning though that “never did activism in and of itself suffice” (410). Concludingly, this book makes the case that the international promotion of human rights for LGBTI individuals is contingent on the interplay of a number of political actors and that a unilateral push by only a few selected stakeholders, be they state or non-state actors, may produce counterproductive effects that hinder rather than advance rights attainment. The reliance on norm diffusion, assuming that rights challengers will eventually follow a ‘logic of appropriateness’, has proven to be too idealistic. This fact seems to be increasingly recognized by EU institutions in their ambition to be more geopolitical in the coming years, although it is far from clear how this rhetoric move may impact on future rights promotion. The augmented emphases on support for (non)state norm entrepreneurs alone may not be sufficient to produce human rights compliant policies in extraterritorial jurisdictions and may expose CSOs to the politicization and securitization of SOGI rights. Material incentives combined with conditional benefits may not be the most useful strategy as they reinforce unequal power relations and neo-colonial perceptions between governments. A sound approach should be equally shared by actors ‘from below’, meaning civil society from within and ‘above’, that is, government institutions, and necessitates transnational activism, sensibly supported by outside (inter)governmental actors and activists. This vertical vector ought to be complemented by a horizontal broadening of domestic advocacy to include a number of intersectionally conceived CSOs to build wider social justice networks. Such a balanced multiactor strategy is better apt to tackle a wide range of inequalities in the advocacy of pluralistic democracies. More specifically, it avoids a narrow heteronormative inclusion model for LGBTI individuals built on either family reproduction, contribution to the economy or fitting into the prevailing cultural-religious character. A forceful push for LGBTI rights, if perceived of as being led by external Eurocentric forces, seldom leads to the type of accountability pressures that exist for governments

150 Conclusion when domestic issues of importance are at stake. Research on the strength of domestically supporting human rights instruments, such as NHRIs, finds that these can prove resilient even when operating in more adverse environments as long as there are various regional human rights mechanisms upon which they can rely (Lacatus 2019). NHRIs not only engage primary the national governments but also coordinate with UN human rights bodies, support domestic CSOs, and thereby contribute to much-needed ‘localization’ and bridge-building processes (Hafner-Burton 2013). Applied to the cases discussed here, it means that the domestic LGBTI rights norm debates should be supported by coordinating intergovernmental organizations that aim to create legally binding instruments for domestic rights maintenance and promotion. This puts the primary focus, but hopefully not onus, on domestic and transnational CSOs. Beyond LGBTI rights norm promotion, the welfare for a host of similarly marginalized constituencies should also be considered, which most governments should care about to avoid delegitimization – as popular protests have sprung up in a variety of (semi)authoritarian states over the past decades. In a letter to governments and development institutions, Civicus, the world’s largest network of CSOs, emphasizes the need to protect the most vulnerable from repression and marginalization, including women, children, the elderly, people living with disabilities, LGBTQ people, indigenous peoples, people living in poverty and other precarious circumstances, and other groups who are marginalized (Civicus 2020). LGBTI CSOs, such as Outright Action International, have been quick to gather data on the detrimental repercussions of the Covid19 pandemic, which highlights the abuse of state power through emergency measures, including restrictions on health care access or legal changes for LGBTI populations. They also link these particularistic measures to a larger decrease in civil rights (Outright International 2020), making alliance-building of likeminded CSOs that pursue social justice a primary avenue for the diffusion of repressive state pressures. These complaints have been addressed by the UN’s Independent expert on SOGI and the European Parliament. Without a sensible and effective strategy for EU foreign policy, however, declaratory statements and pressuring appeals may increase already existing tensions and put these populations at further risk. Framing the issue differently, that is, less in terms of a normative prescription for the countries of the Global South and more as a matter of self-interest for those governments, may present a useful alternative. Attempts to economically analyze the negative impact of homophobia have been conducted in conjunction with the World Bank, which “estimated that the Indian economy may have lost up to $23.1 billion in 2012 in direct health costs alone, owing to depression, suicide, and HIV treatment disparities caused by anti-gay stigma and discrimination” (Alimi 2014). In addition, lower earnings potential through shortened life expectancy and relegation to lower education of those individuals was cited as a negative effect.

Conclusion  151 In view of the contentious nature of moral-normative rights propositions, and in the absence of any substantial international legal provisions guaranteeing LGBTI human rights, a pragmatic interest-based argument about the heightened costs of discrimination could appeal to the ideologically adverse mindset of country leaders in need of economic development. Highlighting the removal of the effects of HIV/AIDS, for example, may further stigmatize already marginalized populations. As LGBTI economist Badgett sees it, “every country is a developing country when it comes to enacting rights for LGBT people” (2020, 12), which relativizes the apparent advanced status of Global North countries and recognizes the threat of intersectional inequalities to human security worldwide. This could open up a more rational negotiation, but it also represents a reductionist reasoning in its focus on savings and neoliberal values. While the latter is what the EU in part represents, it clashes with its other objective of advancing an inherently rightsbased notion of LGBTI human rights. The reality is that CSOs across the globe in large part either willingly appropriate the LGBTI identities, strategies, and discourses originating in Europe or they reframe or translate novel right norms skillfully into local and domestic contexts to make them appear more connected to local traditions, values, and practices (Ayoub 2019). A renewed focus on local needs by today’s transnational CSOs, independent of EU-structured objectives, is an important signifier of the sovereign power of citizens and domestic activists are viewed as more genuine and legitimate this way. In this sense, Langlois (2017) cautions that: to the extent that human rights are used as an institutional policing tool, they provide limited scope for lasting change and run the risk of undermining sustained outcomes. By contrast, to the extent that they embody a grass-roots, indigenous, collective, self-determining movement for change, they can work wonders. (242) A strategic widening of the SOGI rights discourse where governments tighten civil space, and sexual and reproductive rights more generally (for instance in Indonesia), or where it affects health service provision in HIV/ AIDS matters and other activity areas (as in Uganda, Jamaica, and in much of the Global South), builds alliances and dilutes a minoritizing focus on LGBTI rights. Domestic civil society is an essential conduit in this complex norm diffusion process, but domestic CSOs are not always cognizant of the broader geopolitical repercussions at play (such as when Transvanilla, Hungary’s trans* NGO, wanted the EU to cut regional funds to the country, which arguably further politicizes LGBTI individuals there). More importantly, civil society should not have the onerous task of rectifying problematic policies that originate at more powerful levels of governance, as they have limited resources and are potential targets for rights-adverse

152 Conclusion governments. In this regard, Youngs (2020) developed some helpful recommendations in view of the EU’s future budgeting, such as mainstreaming civil society support in all foreign policies (so as to make core values more explicit and avoid the impression of foreign intervention), engaging with a broader range of actors in third countries (not only the ‘usual suspects’ of progressive transnational CSOs), focusing more on systemic resilience to democratic regression (as an early warning system of shrinking civil society space), and considering the impact of other EU policies on local activism (which often have contradictory results). Applied to the case of the EU’s promotion of LGBTI rights, this would mean to more strongly embedded civil society support throughout the EU’s foreign relations, an explicit commitment to localize CSO support even if it does not necessarily advance EU objectives. It also includes a focus on the maintenance of democracy and human rights rather than highlighting specific group to the detriment of others, and lastly, to be cognizant of the impact of other EU policies such as trade, the migration-security nexus, or developmental conditionality on SOGI minorities. As thoughtful as these reform suggestions are, they may still potentially politicize civil society as agents and may sound too paternalistic or normative to some if used in external promotion efforts. Within the EU, however, the increased direct funding of domestic and transnational CSOs in member and candidate states that is already practiced should be more acceptable than supporting CSOs in third countries. The fight for civil space and democratic improvements cannot just be left to CSOs, but necessarily includes other non-state actors such as universities and the media. Not surprisingly, these have been attacked in the EU’s illiberal states as well as in foreign (semi)authoritarian ones and reinforce the argument made about a broader attack on democratic norms and institutions. With regards to universities and educational policies, LGBTI rights norm contestation is often accompanied by a policy focus on restricting academic freedoms, especially when it comes to women and gender studies. Beyond the narrow response to progressive SOGI discourses, governmental interventions in these areas are indicative of a strategic dismantling of fundamental civic rights and opportunities, with far-reaching impacts on future generations. Whether in the case of the Polish, Brazilian, or Bulgarian state contestation of gender studies programs, the forced displacement of one of the EU’s most prestigious universities, the Central European University (CEU) from Hungary to Austria, or in Russian or American LGBTI exclusionary educational policies, the attacks on education are justified as a fight against gay propaganda and used to prevent a destabilization of patriarchal authoritarianism (Redden 2018). This preemptive strategy is also detected in a comparatively measured 13% decline in academic freedoms across (semi)authoritarian governments worldwide (V-Dem Institute 2020). In reality, however, educational institutions not only expand the critical discourse surrounding SOGI but also contribute to better research on this

Conclusion  153 emerging topic. The need for more evidence-based knowledge, upon which national policymakers can rely and which domestic CSOs can use to invoke and substantiate rights claims, has been highlighted by the UN’s SOGI expert in his 2019 report (UN Human Rights Council 2020). Better data development makes use of cost-effective technology, is easier to diffuse even in rights-adverse settings, and helps to dismantle an international homophile/ homophobe binary through the measurement of more differentiated indicators. Importantly, it could potentially evade the highly visible contestation over rights and identities as it is hard to argue with good data. The control of educational institutions thus goes hand in hand with CSO repression and generalized restrictions on civic freedoms of assembly and expression. The media sector represents an ambivalent symptom as well as cause of democratic backsliding and impacts on the popular perception of LGBTI rights as well. Media concentration by oligarchs close to ruling governments and state-restrictions or takeover of other outlets, as in Hungary, deleteriously diminishes press freedoms. So do harassment and killings of investigative journalists, media censorship, and limiting media access elsewhere (V-Dem Institute 2020). These problems with the political (in)dependence of media outlets are compounded by declining levels of trust in media coverage, the echo chamber effect of social media platforms, and various misinformation campaigns by (non)state actors of various kinds (Reuters Institute 2020). Aside from access to independent, pluralistic media outlets as guarantors of democratic norms, the way these portray LGBTI individuals specifically impacts, but also mirrors, tolerance toward minorities. State pressure to cancel TV shows that contain LGBTI content, as occurred when Netflix canceled a Turkish production after the government complained about its gay content in 2020, attempt to invisibilize LGBTI people. Inclusionary media exposure to such topics may have an informational positive impact on opinion formation, especially among younger people. Because of the bordertranscending diffusion of media content, this applies even in more restrictive contexts (Ayoub and Garretson 2017). Moreover, digital media has improved political organizing and exercising influence for LGBTI activists, thus making it more intersectional, more pluralistic, and more participatory (Billard and Gross 2020). These characteristics make the media a preeminent ‘fourth estate’ in governmental systems and explain states’ preoccupation with them. Another potential avenue represents the involvement of the EU-based private sector. Companies are ‘natural’ partners for the EU, which, at its most fundamental level, represents a single market. In recent years, organizations such as the UN have approached the private sector to adhere to the UN’s Global Compact, created in 2000, given the linkage of economic and human rights. It voluntarily binds companies in over 160 countries to ten ethical principles, two of which are human rights related. While some have remarked on its transformative potential, others have found it little more than a social corporate responsibility exercise. Similarly, the EU has

154 Conclusion been working on ‘due diligence’ proposals that would institute a rights assessment for EU-based companies and their foreign subsidiaries (European Parliament 2020). Over 100 CSOs have called for the strengthening of such accountability mechanisms and, given that companies often exert significant influence over trade and businesses in third countries, these could be powerful allies in the support for LGBTI rights globally. Even within the EU, Polish business associations have, for instance, called out the government over its Eurosceptic policies, fearing an exclusion from the single market. Businesses may support LGBTI rights within their human resource structures, but they often are less willing to promote those externally in the more rights-adverse settings they operate in (Saragih 2020). Moreover, a stronger alliance of companies with already business-friendly EU institutions would lead to further accusations of neoliberal interventionism and hegemonic ‘homo-capitalism’ (Rao 2015). Within Europe, the economic and financial structures have produced a crisis-prone region and have, in post-communist countries, led to shock liberalization followed in some cases by nepotistic statism. And externally, the EU’s neoliberal trading regime appears often primarily self-interested. The private sector, while potentially impactful, should only be considered in a supportive role, as it cannot replace government policies and is often not bound to the same type of accountability as the latter. For existing EU states and prospective members, many framework conditions for LGBTI rights promotion are already in place, such as CSO support, institutional EU advocacy, and foreign policy guidelines. The emergence of rights-contesting governments has exposed discrepancies and inconsistencies with EU strategies. As a result, the EU has put an increasing emphasis on rule-of-law, democracy, and rights issues through dialogues, score cards, and a newly developed EU-internal rule-of-law audit. The latter examines the justice systems, the fight against corruption, media pluralism and freedom, and checks and balances more broadly (European Parliament Research Service 2020). The report not only sounds the alarm over judicial independence in Hungary and Poland but also notes similar problems in Bulgaria, Romania, Croatia, and Slovakia. Threats against journalists are particularly worrying in Bulgaria, Croatia, Hungary, Slovenia, and Spain (Politico EU 11/24/2020). Not surprisingly, the corruption watchdog Transparency International ranked Hungary at the bottom of EU states at 69 out of 180 examined countries, together with Bulgaria and Romania, and with Poland not faring much better as 45th ranked country. Poland and Hungary also distinguish themselves by having deteriorated in this respect since 2012, whereas other CEE states did not (Transparency International 2021). In this context, an important instrument to delimit democratic backsliding in member states could be the rule-of-law conditionality for member governments to receive funds from the 2021 to 2027 EU budget and the Covidrecovery fund, both accounting for a massive 1.8 trillion Euros. As noted at the beginning of this chapter, only Poland and Hungary initially vetoed

Conclusion  155 this new conditional mechanism. After the other member states, as well as the EU institutions, threatened to proceed without these two countries, at the end of 2020, a compromise was found that prescribes that the EU’s application of internal rule-of-law sanctions needs to be verified by the EU’s top court. Unlike political conditionality applied to the Global South, consensus among European ‘equals’ eventually prevailed. This alleviated Polish and Hungarian government fears that they would face political recriminations and shows that, even in such conflictual relationships, the independence of courts is still respected. This illustrates that auxiliary judicial institutions, such as national and European courts – among the latter, the Court of Justice of the EU (CJEU) and the European Court of Human Rights of the Council of Europe – are significant guarantors of rights. Domestic and international courts are not only statutorily independent legal bodies in European democracies and in many democracies that the EU interacts with, they also tend to be among the most highly respected political bodies. In the EU, a slight majority of citizens consistently support the EU’s highest court, although this support may be rather diffuse (Voeten 2013). Even though the court has become more salient in public discourses and thus, somewhat politicized, its widely accepted stature makes it a significant promoter of rights: internally, following the incorporation of the Fundamental Rights Charter, its scope has been broadened, and unlike the European Court of Human Rights, its judgments are enforceable. The CJEU has proved to have an increasing impact externally as well especially in the refugee/asylum areas (see Chapter 3). It is in the latter where governments, guided by courts, can expand protections for LGBTI asylum seekers when those are threatened in their home countries. Similarly, domestic supreme or constitutional courts have a preeminent standing as constitutionally neutral arbiters and are recognized and supported as such by the EU institutions. This is why some of the most egregious homophobe governments have also started to delimit their courts’ independence. In fact, in 2020, the European Commission started legal proceedings against the Polish government for its weakening of the independence of the Polish court system. Moreover, the EU Court of Justice intervened in a number of rights-restrictive cases in other countries, including in Hungary, where it found its asylum policy, its planned NGO-transparency law, and its educational restrictions for universities in breach of compliance with fundamental EU freedoms (Makszimov 2020). Domestic courts, with the added oversight of supranational courts, have already become more significant in rights maintenance and enforcement, and civil society makes regular use of the legal invocation in case of contentious rights issues. In the complex and ambiguous field of norm promotion, there are no magic silver bullets available, and each policy comes with attendant tradeoffs. Aside from pointing to certain blind spots in the EU’s ambitious but incoherent LGBTI rights promotion, the preceding sections broaden our

156 Conclusion understanding of norm contestation embedded in larger governance issues. They also suggest to extend the scope of actors and activities to provide a more comprehensive, or ‘holistic’ approach, to speak in EU lingo. One needs to keep in mind, though, that even an inclusive normalization of LGBTI rights and their improved standing in the international human rights regime may not be the be-all and end-all. An expanded focus on democracy promotion, of the Western (neo)liberal kind, will likely engender resistance as well in a multipolar international system. Moreover, as much as democratic norm negotiation practices are inherently antagonistic, so are the various positions of gay and lesbians, trans* people or queer individuals toward any type of power-laden authority, be it institutional, economic, or normative. Hopgood et al. (2017) succinctly summarize the future promises and pitfalls of the international human rights regime marked by a more geopolitically challenging system: Accepting the importance of both backlash and localization is to understand that human rights will evolve at different speeds, will not be achieved in all cases any time soon, and will be defined very differently than they might be in Western capitals. Listening to local demands, compromising on human rights maximalism, and sharing resources more widely through the network of human rights supporters are identified as ways to create a more truly global movement. But by going down this pragmatic path, some of the aspirations of the mainstream model may have to be abandoned as clearly stated universal aims. (322)

Conclusion It is important to reiterate that the internationalization of human rights norms seldom occurs in a conflict-free, linear matter, no matter whether the issue is the death penalty, female genital mutilation, or LGBTI rights. Differences over who is a rights holder and to what extent various rights should be accorded vary across space and time. Those tensions are augmented when powerful norm entrepreneurs, such as the EU, together with European states, advance a relatively novel rights agenda through high-visibility symbolic and pressure politics. Given the contextual, structural, as well as agent-centered issues, a self-reflective impact assessment by political stakeholders is required. This will likely stress CSOs as essential vehicles and domestic governments as primary targets for social learning and norm negotiation. Besides these political moves, the global circulation of information and ideas, supported by internet technologies and civil societies, help spread a slow and uneven, but simultaneously resilient, global SOGI rights awareness. Since 2000, improvements in public opinion and civic mobilization are evident in many emerging key states across the globe, from Mexico

Conclusion  157 to the Philippines, with attitudes strongly correlated to national wealth, age, and education (Pew Research 2020). A temporarily longer, as well as thematically broader, perspective is advised, which does not fit neatly into multiyear electoral windows or budgets for that matter. If Dahrendorf’s (1990, 99) abbreviated dictum is correct that ‘it takes six months to replace a political system, six years to transform an economic system, and sixty years to change a society’, then reflective, sustainable norm negotiation strategies are advised to support domestic attitudinal and political changes in countries of concern. These ought to be complemented by policies that reduce socio-economic inequalities in labor, education, and other public policy sectors. Essential self-reflective practices that adequately address complex, intersectional rights issues (Collins 2019) in an international environment are predicated upon the analytical recognition of interconnected factors. Among the most prominent are the interlinkages between EU-internal policies and external impacts, the connection between economic inequality, democracy, and human rights, and the intersecting relations between SOGI, ethnic, racial, and other social justice causes and advocates. Such a reflective approach also admits that while LGBTI and gender equality strategies are relatively well developed in the EU, ethno-religious immigrant and structural racism are still less acknowledged by political actors there. More importantly, a particularistic focus on specific constituencies needs to be embedded in a broader assessment of pluralistic, democratic sustainability. Without the latter, an expressed focus on LGBTI rights ends up relegating other pertinent issues to a lower priority and encourages apparent culture wars and identity-politics that make it more difficult to achieve sustainable solutions. Improvements are contingent on a number of domestic factors (such political elites, independent courts, socio-economic and culturalreligious conditions, and quality of democracy) interacting with international ones (influence of international organizations, transnational mobilization of activists, access to information, issue-linkages, and conditionalities). In the EU, this ‘international-domestic’ contingency is increasingly blurred by the materialization of the EU’s supranational power in European domestic contexts. Both policy arenas are more strongly connected in the region than elsewhere, which introduces a somewhat Eurocentric foreign policy bias that tends to be applied to the rest of the world. As should have become evident throughout this book, norm contestation is integral to norm emergence, alteration, and diffusion. While it is commendable that the EU is one of the most visible LGBTI rights promoters globally, not only is normative learning and negotiation required by its counterparts, but a consistent reflective and intersectional practice may also be needed from the EU and its member states. This may possibly augment the human rights of LGBTI individuals worldwide and may bring Europe closer to its much-touted ‘Unity in diversity’ on these issues.

158 Conclusion

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Index

advocacy 2, 8, 13, 14–15, 20, 22, 24–5, 29, 39, 50, 70, 81, 101, 109, 118, 120, 121, 149, 154 Africa 7, 23, 94, 102, 119, 121, 122, 126, 142 African, Caribbean, and Pacific countries (ACP) 6, 7, 98, 101, 110, 112 aid conditionality 93, 104–5 antidiscrimination 6, 38, 51 Arab Spring 77, 84, 86, 121 Asia 6–7, 98, 102, 106, 119, 126 backsliding 73, 139, 147–8, 153–4 Balkan states 4, 81, 88, 132 binary/-ies 3, 11, 16, 25, 26, 36–7, 44, 47, 63, 88, 93–4, 108, 111, 120, 138–9, 141, 153 bisexual 1 boomerang effect 32 Central and Eastern Europe (CEE) 37–8, 49, 51, 53–5, 58–9, 63, 70–1, 74, 76–81, 85, 88, 140, 146–7, 154 conflict 38, 54, 69, 72, 74, 78, 102, 104, 125, 133, 143, 156 cosmopolitan/ism 21, 118 Court of Justice of the European Union 4–5, 57, 74, 155 constitution 5, 10, 144 civil society organizations (CSOs) 1, 12–13, 15, 29, 37, 45, 51, 55, 58, 64, 70, 72, 74, 84–5, 88–89, 100, 104–6, 109, 118–19, 120, 121, 124, 139–42, 145, 147–56 Copenhagen criteria 8, 16, 22, 54, 69, 72 civilization 1–3, 21, 36, 96 community 20, 22, 31, 36, 52, 63, 69, 105, 109, 112, 123, 149

citizen/ship 4, 14, 17, 21, 22, 31, 44, 48, 60, 69, 99, 105, 117, 144, 151, 155 conditionality 6, 16, 23, 38, 39, 50, 56, 72, 73–4, 84, 85, 88, 93–7, 99, 101–5, 108, 110–11, 128, 132, 139, 141, 152, 154, 155; aid 93, 104–5 (see also aid conditionality); political 97, 99, 101, 128, 141, 155 court/-s 15, 23, 45, 47, 50, 53, 57, 60, 74, 88, 104, 107, 109–10, 118, 124, 138, 155, 157 cultural relativism/contextualism 3, 10, 29–30, 46, 103, 124–6 demographics 83, 97, 103 depoliticization 105 discourse 26, 36, 143–4, 151–2 diversity 37, 51, 59, 94, 106, 124, 144, 157 discrimination 1, 6, 27, 48, 70, 102, 12, 150–1; anti- 1, 6, 9–10, 27, 70 development 13, 21, 60, 93–103, 111–12, 123, 128, 131–2; policy 6, 8, 38–9, 93–103, 111–12, 128 democracy 1, 8, 10, 12, 17, 22, 35, 46, 51, 56, 59–60, 73–5, 83–6, 94, 97, 100, 101, 104, 106, 108, 140–3, 145, 147–9, 152, 154, 156–7; regression 139, 143, 147, 152; see also backsliding Egypt 46, 70, 83–4, 86 empire 63, 77 enlightenment 21 epistemology 22 equality 1, 4, 8, 24–7, 48–9, 53, 58, 93–4, 139–40, 145–6, 149, 157 Euro-centric/-icity 132, 157 Europe/an 1–2, 5–7, 12–13, 21–7, 31–2, 36–8, 44–64, 68–89, 93–102, 108, 118,

162 Index 122–4, 126–9, 140–4, 146–8, 154–7; Eastern Europe 6, 7, 8, 49, 70–1, 76, 77, 83–5, 87, 98, 122, 129, 140; Western Europe/West European 8, 16, 44, 45, 47, 49, 50, 53–5, 58, 63, 69, 70, 76–9, 81, 120, 122, 126, 128, 129, 140, 146 European Commission 58 European Court of Human Rights 155 European External Action Service 117 European Neighborhood Policy (ENP) 83–7 European Parliament 45, 58–9, 86, 98, 108 European Union (EU) 1–2, 4–17, 22–3, 25, 27, 31–9, 44–64, 69–89, 93–103, 106–8, 110–12, 118–20, 122–3, 125, 127–134, 138–57

hegemonic 38, 76, 77, 100, 154 heteronormative/-ity 27, 31, 37, 51, 81, 96, 103, 106, 149 heterosexual 37, 48, 71, 74, 78 HIV/AIDS 103, 110, 118, 150–1 homocapitalism 154 homocolonialism 93 homonationalism 36, 77 homonormativity 24 homophobia 16, 38, 49, 53, 59, 69–71, 81, 85, 103 homosexual/-ity 85, 95–6, 103–11 human rights 1–17, 20–35, 38–9, 45–51, 59–61, 69–70, 72–3, 78, 84–7, 93–4, 97–101, 112, 117–18, 120–7, 130–3, 140–3, 147–57 Human Rights Commission 118, 120 Hungary 47, 54, 79, 154–5

feminism/ists 22, 24–5, 27, 29, 36, 106, 124, 146, 149 foreign policy 32–3, 60, 69, 84, 93, 130, 142, 146–7, 154, 156, 157 frame/ing 23, 25–9, 33, 48, 50, 70, 81, 100, 107, 119, 121, 124–5, 143, 147, 150 France 49, 53, 121, 126, 127, 129 fundamental rights 6, 58, 72, 74; Agency 12, 49, 60, 63; Charter 22, 48, 51, 57, 155

identity 3, 6, 28, 36, 54, 121; gender 3, 6, 117, 121, 139 (see also transgender); politics 28, 31, 37, 62, 144, 157 ideology 26, 45, 55 inclusion 27, 31, 36–7, 85–6, 123 indigenous/-eity 59, 85, 103, 106, 107, 112, 124, 132, 150, 151 Indonesia 16, 95, 96, 102–9, 111, 112, 120, 121, 151 institutionalism 11, 95 interaction 45, 57, 84, 99, 102, 111 international courts 155 International Covenant on Civil & Political Rights 118 International Covenant on Economic, Social and Cultural Rights 118 International Criminal Court 118 international law 97, 117, 124, 126 International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) 12–13, 25, 59, 63, 123, 124; Europe 12–13, 47, 51–2, 72, 78, 81, 86, 142, 144 international relations 3, 14, 15, 16, 21, 22, 23, 24, 31 international system 97, 156 intersectional/ity 27–8, 146, 157 intersex 1, 121 intervention 14–15, 152 Islam 81; see also Muslim Islamophobia 16, 68, 70–1, 74, 76–8, 81–3, 87–88

gay 1, 29, 36, 47, 48, 50, 57, 62, 88. 100, 101, 102, 107, 109, 124, 125, 150, 152, 153, 156; international 35, 36; pride 37–8, 140 gender 1, 5, 6, 9, 24–8, 47, 85, 93, 107, 117, 124, 146, 152; equality 24–7, 83, 93, 95, 118, 139, 144–6, 149, 157; identity 3, 6, 117, 121, 139; politics/ies 24, 27, 143 geopolitics/-al 17, 30, 38, 73, 84, 86, 111 Germany 5, 50, 53, 83, 117 global 1, 2, 6, 13, 22, 27, 29, 118–19, 127, 142, 156; economy 127; politics 20 globalization 98, 118, 144 Global South 6–7, 10, 12–14, 29, 30, 36–7, 62, 93–6, 100, 104, 107, 112, 123, 128, 131–2, 142, 145, 146 governance 5, 11, 13, 25–6, 33, 38, 47, 50, 54, 63, 68, 73–4, 83, 93–5, 99–101, 111–12, 138, 139, 142, 143, 145–8, 151, 156

Jamaica 16, 95, 96, 102–3, 108–11, 151

Index  163 Latin America 7, 98, 101–2, 122, 126 legitimization 45, 56, 63, 150 liberalism 29, 37, 112 Lesbian 1, 29, 36, 50, 51, 73, 96, 118, 120, 156 LGBTI advocacy 8, 13, 14, 15, 24; movements 1, 13, 24, 33, 61, 88; politics 27, 31; rights 1–17, 20–1, 24–8, 31, 33–9, 44–64, 68–74, 82–8, 93–5, 100–12, 118–134 legislation 4–5, 16, 50, 73, 74, 85, 96 marginalized/alization 11, 24, 27, 98, 101, 105, 110, 150–1 marriage 12, 31, 47, 48, 49, 50, 54, 57, 60, 62, 74, 104, 127 masculine 87, 146 Middle East 7, 33, 36, 78) im/migration 7, 20, 47, 79, 81, 83, 84, 87, 95, 98, 111, 112, 128, 141, 142, 144, 152 minority/-ies 1, 5, 8, 16, 20–1, 22, 25, 26, 29, 44, 54, 62, 69–71, 72, 74, 77, 85, 88, 101, 130, 140, 146, 151–3 modernity/-ization 14, 21, 36, 47, 56, 76, 94, 144, 146 moral 24, 33, 62–4, 83, 104, 106, 109, 143, 151; panic 44, 69, 71, 87, 106, 143 Muslim 29, 36, 47, 71, 76–8, 80–2, 83, 85, 87, 88–9, 96, 103, 106, 107, 125; see also Islam National Human Rights Institution (NHRI) 120, 150 nationalism 47, 71, 81, 109, 144 nation-states 85 neoliberal/-ism 37, 51 Netherlands 37, 49, 96, 104, 106–7, 117, 121, 123, 126 non-governmental organization (NGO) 12, 60, 70, 102, 104, 122–3, 151, 155; see also advocacy; CSO norm/ativity 1–3, 7–11, 14–17, 20–39, 44–64, 68–70, 73, 81–4, 88, 94–99, 101, 103, 106, 111, 117–21, 123–7, 131–3, 139–44, 147–52, 155–7; constitutive 31–2, 35, 36, 39, 46, 55, 56, 62, 63, 68, 125, 127; contestation 3, 20, 31–2, 34, 48, 50, 58, 63, 95–6, 118, 125, 127, 133, 139, 141, 152–3, 156, 157; diffusion 3, 16, 20, 26, 31–2, 34, 36, 46–50, 55–8, 60–4, 70, 83, 95, 99, 124, 125, 131, 142, 149, 151, 157; polarization 14, 27, 32, 34, 61, 63,

125–7, 133, 144; regulatory 31, 34, 36, 39, 46, 63, 77, 95 Normative Power Europe (NPE) 10, 35–6, 45 ontology 29, 144 Organization of Islamic Conference 121 particularism 3, 16, 20, 21, 94, 150, 157) patriarchal 25, 152 performative/ity 3, 20, 30, 37, 46, 58, 61, 71, 88, 112, 118, 139, 142, 145, 148 periphery 31, 54 persecution 5, 57, 88 pink washing 98 pluralism 1, 22, 103, 106, 107, 143–4, 154 Poland 44–5, 47–50, 53–4, 60, 61, 63, 74, 76, 78–9, 138, 143–4, 146, 147, 154 postcolonial 6, 7, 36, 70, 93, 94, 96, 99, 105, 108, 109, 111, 118, 128, 139, 141, 142, 147; Theory 22 Power 2, 5, 9–11, 23–6, 31, 33–6, 45, 57, 96–7, 119, 127 queer theory 3, 11, 24, 28, 46, 51, 63 race/ism 22, 97, 144 Rainbow Europe Map(s) 68 realism 9 reform(s) 5, 15, 16, 17, 24, 26, 68, 72–4, 77, 83–9, 95, 111, 117, 129, 133, 140, 152 regimec 3, 15, 30, 31, 33, 47, 106, 118, 145, 147, 154, 156 representation 23, 26, 62, 125, 128–9, 131, 145 rights 1–17, 20–39, 44–64, 68–74, 77–8, 81–9, 93–112, 117–134, 138–157; sexual 2, 3, 11, 12, 14, 15, 29, 36, 46, 54, 61, 69, 107, 119; social 11, 61; see also human rights; LGBTQ rights Russia 30–1, 33, 37–8, 45, 46, 47, 59, 62, 71, 73, 78–9, 84–5, 88, 126, 131, 143, 144, 152 securitization 33, 96, 102, 109, 139, 149 security 7, 10, 17, 23, 26, 30, 36, 60, 70, 71, 81, 83, 86, 88, 94, 95, 97, 112, 118, 128, 141, 146, 151, 152 sexual 3, 14, 29, 36, 37, 77, 78, 85, 94, 107, 109, 124; equality 24, 46, 53; orientation 5, 6, 9, 48, 57, 102, 117, 121, 138

164 Index Sexual Orientation and Gender Identity (SOGI) 6, 11, 23, 24–33, 37, 46–9, 55, 57, 58, 60, 63, 70, 71, 76, 78, 85, 93–6, 98, 100, 102, 106–111, 117–27, 131–4, 138, 139, 142–53, 156–7; SOGI discrimination 48, 105, 121, 123, 132 sexuality 24, 27, 28, 30, 78, 96, 106 social justice 30, 107, 112, 146, 149, 150, 157 sovereign(ty) 54–5, 69, 81, 87, 93–5, 109, 129, 131–2, 144, 145, 151 Spain 5, 83, 128, 154 state 2–17, 21–3, 25–6, 29–33, 38–39, 45–64, 68–88, 94–5, 98–108, 110–12, 117–34, 138–50, 152–57 tradition/al 3, 30, 36, 37, 47, 61, 69, 71, 78–9, 82, 88, 103, 126, 144, 145, 151 trans*/transgender 1, 9, 25, 47, 49, 102, 109, 120, 145, 151, 156; see also identity Turkey 46, 47, 71, 74, 76–8, 126, 143 Uganda 16, 95, 96, 102–5, 111, 132, 151 United States (US) 9 universal/-ism/-ity 2–3, 20–2, 27, 29–31, 34, 36, 38, 48, 117–18, 120, 124, 125, 126, 130, 133, 148, 156 Ukraine 16, 37–8, 46, 59, 77, 83–6

United Nations (UN) 2, 7, 11, 13, 15, 17, 24, 31, 32, 38, 48, 62, 97, 99, 105, 112, 117–34, 142–3, 150, 153; Human Rights Council (HRC) 7, 118–26, 130–4, 142, 153 Universal Declaration of Human Rights 20, 29, 30, 118, 142 violence 110, 121 visibility 7, 24, 33, 37, 50, 54, 57, 73, 82, 88, 94, 96, 105, 117, 122, 134, 143, 145 war 7, 22, 29, 30, 34, 35, 68, 69, 76, 77, 106, 118, 124, 127; Cold War 7, 22, 29, 30, 68, 69, 76, 127; post-cold war 7, 34, 35, 124 West/ern 13, 14, 16, 21, 24, 28, 29–31, 34, 36–8, 51, 53–5, 63, 70, 73, 74, 76–7, 81, 85, 89, 96, 103–6, 121, 123, 125, 126, 131, 132, 141, 143, 156; non-West 28, 31, 93, 126; Western Europe/West European 8, 16, 44, 45, 47, 49, 50, 53–5, 58, 63, 69, 70, 76–9, 81, 120, 122, 126, 128, 129, 140, 146 women 1, 6, 8, 21, 23, 24–30, 59, 78, 86, 93, 95, 97, 107, 117, 120, 124, 125, 138, 142, 145–6, 148–9, 150, 152 World War II 77, 106, 118, 127 Yogyakarta Principles 106, 120