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Comparative Sexual Orientation Law

Vak
2014-2015

Please note that the following description of the course is only provisional and therefore subject to change.

Admission requirements

Successful completion of at least one year of university education (including ideally some course(s) in law, human rights and/or LGBT studies). Active and passive command of English and experience in writing researchpapers.
The course is primarily aimed at third year law students of many different national backgrounds and of many different universities, but students from other disciplines or years are equally welcome. The maximum number of students is 16.

Description

This course takes a close look at legal developments concerning sexual orientation. Around the world, various rules of national law deal with homosexual orientation, either to suppress or marginalize it (for example through criminalisation), or to recognize or protect it (for example in family law or in anti-discrimination law). In many countries, and also in many international organisations, the law with respect to sexual orientation has been changing recently, and more changes can be expected. To grasp the many advances and setbacks in this field, this course takes a comparative approach, comparing laws of different countries and comparing minimum standards set by different international institutions.
Since the 1790s a growing number of countries has decriminalised sex between people of the same-sex, a trend that helped international human rights bodies to set strong and clear precedents condemning such criminalisation (still existing in some 80 countries) as a violation of human rights. Since the 1970s a growing number of countries has started to take legal measures against sexual orientation discrimination; in the field of employment the European Union since 2003 requires member states to explicitly and effectively prohibit such discrimination. Simultaneously a growing number of countries has started to legally recognise same-sex couples and sometimes also their children; slowly such a recognition is now also finding its way into international human rights case law.
Students will be working with original materials, including national and international case law, and with the results of multi-country comparative legal research. They will do their own comparative legal research, and will write papers on four different aspects of sexual orientation law, each paper from a different possible professional perspective.

Course objectives

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

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

  • Students will understand how different aspects of sexual orientation (behaviour, preference, relationships, etc.) are being ignored and/or recognized in national and international law, and how national law is both influencing and following international law (including European Union law).

  • Students will be familiar with the most important case law in the field, especially from the European Court of Human Rights and the UN Human Rights Committee.

  • Students will have gained some skills in finding materials on foreign law and in doing basic comparative research.

  • Students will be able to think and argue in an informed and relevant manner about issues of sexual orientation law.

Timetable

In the first months of 2015 the course will be taught in ten sessions (mostly from 15:30 to 18:00 hours; mostly on Mondays and Thursdays).
The first paper will be due before the third session, the fourth paper one week after the final session.
Most sessions will be at Leiden University’s Campus The Hague, in the Stichthage building right above the Central Station of The Hague.
The exact timetable of this course will be announced in Blackboard.

The exact timetable of this course will be announced in Blackboard.

Mode of instruction

Seminars

  • Number of (2 hour) seminars: 10

  • Names of instructors: Kees Waaldijk and guest lecturers

  • Required preparation by students: reading the set materials

Other methods of instruction

  • Description: individual consultation for the papers (up to 1 hour per student)

  • Number of (2 hour) instructions: 0

  • Names of instructors: Kees Waaldijk

  • Required preparation by students:

Assessment method

Examination form(s)

  • Participation in class (including a short individual presentation) (20%)

  • Four papers of up to 1200 words (20% each)

Two students who would like to write one of the four papers together, can be given permission to do so (with additional requirements); in that case the maximum length is 2000 words.

Being absent more than once, or more than once failing to read the set materials, will lead to a lower score for “Participation in class”. Handing in a paper after a deadline will lead to a lower score for that paper, or to a zero-score if the other papers have already been graded.

Submission procedures
Blackboard.

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

Blackboard

More information on this course will be offered in Blackboard.

Reading list

Obligatory course materials
Literature:
• parts of: Alli Jernow, Sexual Orientation, Gender Identity and Justice: A Comparative Law Casebook, Geneva: International Commission of Jurists 2011 (online here buying this book is recommended).
• Kees Waaldijk, ‘The Right to Relate – A Lecture on the Importance of “Orientation” in Comparative Sexual Orientation Law’, 24 Duke Journal of Comparative & International Law (2013) p. 161-199, online here.)
• Esin Örücü, ‘Methodological Aspects of Comparative Law’, 8 European Journal of Law Reform (2006) p. 29-42 (online here.)
• Ryan Thoreson & Sam Cook (eds.), Nowhere to Turn: Blackmail and Extortion of LGBT People in Sub-Saharan Africa, Brooklyn: International Gay and Lesbian Rights Commission 2011, p. 1-18 and 130-147 (online here.)
• Edwin Cameron, ‘Constitutional Protection of Sexual Orientation and African Conceptions of Humanity’, 118 South African Law Journal (2001) p. 642-650 (’‘online here”:http://heinonline.org/HOL/Page?handle=hein.journals/soaf118&div=62&g_sent=1&collection=journals#652.)
• Kees Waaldijk & Matteo Bonini-Baraldi, Sexual Orientation Discrimination in the European Union: National Law and the Employment Equality Directive, The Hague: Asser Press 2006, p. 1-4 and 189-231 (online here.)
• Kees Waaldijk, ‘Same-Sex Partnership, International Protection’, in: R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford: Oxford University Press 2012 (online here, but only accessible from a university computer.)
• Douglas Sanders, ‘Same-Sex Marriage: An Old and New Issue in Asia’, in: H. Petersen et al. (eds.), Comtemporary Gender Relations and Changes in Legal Cultures, p. 211-233, Copenhagen: DJØF Publishing 2013).
• Kees Waaldijk, ‘Legal Family Formats for (Same-Sex) Couples’, in: Olivier Thevenon & Gerda Neyer (eds.), Family Policies and Diversity in Europe: The state-of-the-art regarding fertility, work, care, leave, laws and self-sufficiency, Stockholm University: FamiliesAndSocieties Working Paper Series, nr. 7 (2014), p. 42-55 (online here.)
• Nancy D. Polikoff, ‘Recognizing Partners but not Parents / Recognizing Parents but not Partners: Gay and Lesbian Family Law in Europe and the United States’, 17 New York Law School Journal of Human Rights (2000) p. 711-750 (online here.)

Cases:
Dudgeon v UK, European Court of Human Rights, 22 October 1981"
Toonen v Australia, Human Rights Committee, 31 March 1994
Mouta v Portugal, European Court of Human Rights, 21 December 1999"
Joslin v New Zealand, Human Rights Committee, 17 July 2002
Karner v Austria, European Court of Human Rights, 24 July 2003"
X v Colombia, Human Rights Committee, 30 March 2007?.
Maruko (C-267/06), Court of Justice EU, 1 April 2008.
Schalk & Kopf v Austria, European Court of Human Rights, 24 June 2010".
Alekseyev v Russia, European Court of Human Rights, 20 October 2010".
Atala & daughters v Chile, Inter-American Court of Human Rights, 24 February 2012.
Fedotova v Russia, Human Rights Committee, 31 October 2012.
Accept (C 81/12), Court of Justice EU, 25 April 2013.
X and others (C-199/12), Court of Justice EU, 7 November 2013.
Hay (C-267/12, Court of Justice EU, 12 December 2013.
X v Austria, European Court of Human Rights, 19 February 2013".

Course information guide:

Reader that will be handed out in class:

  • Materials that are not available online, will be handed out in class.

Recommended course materials

Registration

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

Contact information

  • Co-ordinator: Prof. Kees Waaldijk

  • Work address: room 12.44, Stichthage building in The Hague (access via stairs opposite platform 9 in main hall of railway station Den Haag Centraal)

  • Contact information:

  • Telephone number: 070 800 9593

  • E-mail: c.waaldijk@law.leidenuniv.nl

Institution/division

  • Institute: Public Law

  • Department: Public International Law

  • Room number secretary: B1.21, Kamerlingh Onnes building in Leiden

  • Opening hours: 9:00 – 17:00

  • Telephone number secretary: 071 527 7578

  • Email: e.h.uiterweerd@law.leidenuniv.nl