Rights and the Politics of Normalization [1]

From a queer theorists’ perspective, equal rights politics present several structural limitations for sexual minorities. As sexuality is generally considered as belonging to the realm of the private, only certain issues can gain access to the hegemonic public. However, due to wide-ranging processes of neoliberal economical and social transformation, new modes of recognition are offered to specific life forms that fit into a pluralist market society – among them (some) lesbians and gay men. Focusing on the Swiss Partnership Law, I try to explore the current conditions as well as limitations of these processes of normalization.

The Swiss Partnership Law came into effect on 1 January 2007 and was confirmed by a majority vote of 58 percent of the population in a referendum. Years of often heated debates inside and outside the Parliament regarding the concrete contents of the law preceded the referendum. My Queer Reading of several different discourses related to the Swiss Partnership Law focuses on the ambivalences and contradictions that arise when attempts are made to integrate forms of “otherness” into a preexisting framework of recognition structures.

Therefore, I will give a brief account of the Partnership Law and demonstrate its relationship to marriage, which provides the basis for my illustration of the mechanisms of normalization that, on the one hand, enable the Partnership Law to enter into the existing structure of norms and, on the other, simultaneously underscore its status as exceptional and hierarchically subordinate to marriage.

Swiss Partnership Law (Partnerschaftsgesetz or PartG)

The main issue at stake in formulating the Partnership Law (cf. Swiss Federal Law, Bundesgesetz, 2004) was to clearly distinguish it from marriage.[2] This becomes evident on the formal and symbolic levels as well as in its content. On the one hand, the Partnership Law is presented as a separate piece of legislation. Although it is largely based on the marriage law, it is formulated as a distinctly separate legal issue and, unlike the marriage law, the Partnership Law is consciously omitted from the family law of the Swiss Civil Code. In addition, there are several differences to Marriage Law interspersed throughout the law, which have a more symbolic character and less of an actual effect on the configuration of a partnership. There is no formal engagement, the couple has no common civil rights, it is not possible to officially take on the same name, and vowing “I do” before the justice of the peace at the Swiss Zivilstandsamt is substituted by simply registering a declaration of intent. Finally, there is a series of significant similarities and significant differences in the specific legal norms that govern the language of the laws regulating marriages and registered partnerships (RPs): Registered partners have the same rights as married partners in laws regarding inheritance, the provision of benefits from employed partners, taxes, residence and work laws for aliens, procedural law, debt enforcement and bankruptcy, the right to a shared living space, legal representation of the partnership, and the obligation of disclosure to one another; further similarities include the obligation of care and provision and alimony. Equal rights are also afforded in social security law; the only significant discrepancy is in the rights of surviving lesbian partners, who are treated as widowers and not as widows. Major differences occur in the areas of civil rights, for example, names, dissolving the partnership, property rights, and the explicit denial of the right to adoption and access to reproductive medical technology.

Therefore, aside from a few exceptions, the main demarcation between these two legal institutions lies in the partnership elements that are largely conceived of as analogous to the Marriage Law and in the areas protected under Family Law, which shows substantial differences. This discrepancy clearly shows that RPs do “not [constitute] a basis for starting a family” and should be clearly distinguishable from marriage.[3]

On the other hand, the “specified core” of the Marriage Law is considered the logical point of departure for formulating the regulations of same-sex partnerships, thus conceiving them as long-term, monogamous, financial, and sexual partnerships comprised of two persons who live together.[4] This conceptualization is unfortunate; it (consciously) forfeits an opportunity to actively set norms in a creative manner. Instead of forming an alternative institution that is able to accommodate the different needs of multifaceted relationship constellations and life realities, marriage is further inscribed as the ideal model. This ideal model serves as the basis for assessing where equality is appropriate, i.e., where similar needs arise and where differentiation is necessary in “accounting for the specificities of same-sex couples.”[5] In order to determine these specificities an ideal type of same-sex partnership was introduced or produced: the crux of this ‘homo-norm,’ which the law was tailored to fit, is its assumption that the couple is without children from which is inferred, among other things, that both partners are gainfully employed on a full-time basis. In light of the disparity of income between men and women and the significantly greater number of children who live in lesbian relationships, it is not difficult to conclude that to a much greater extent gay male couples fit the image of the ‘homo-norm’ basis of the Partnership Law and consequently benefit from the Partnership Law to a much greater extent than lesbian couples.

The Mechanism of Normalization

The way in which the Partnership Law was introduced into the normalizing fabric of state-sanctioned structures of recognition can be described through the concept of normalization. Drawing on Michel Foucault and Antke Engel, I understand normalization as a “mechanism of hierarchically differentiated integration.”[6] The legal normalization as described above is ambivalent, as it finally provides lesbian and gay couples an undeniably significant and necessary form of legal certainty, which, however, applies only to certain lesbian and gay couples. Aside from that, the Partnership Law is primarily defined through its relation to marriage. This implies, on the one hand, that the Partnership Law’s norm setting is rooted in an irrefutably unjust system of recognition that privileges certain forms of two-person relationships over other forms of two-person relationships or those between three, four or five persons. Moreover, the necessity of belonging to one of two clearly distinguishable genders that correspond to specified criteria is reinforced as one of the fundamental prerequisites for attaining legal recognition. On the other hand, setting new norms further emphasizes the hierarchically dominant position of marriage. For, it is a matter of integrating that which is “different/other” in relation to marriage, which is expressed by the deliberate demarcation of the Partnership Law in its form, symbolism and content. Despite the fact that marriage no longer constitutes the only legitimate form of relationship worthy of recognition, through its demarcation, it becomes elevated and valorized in its present form as virtuous, inviolable and worthy of preservation. This privileging of marriage is primarily legitimized by its social significance based on its professed orientation towards children, an orientation that same-sex couples are denied under the Partnership Law. Paradoxically, single lesbians and gays have the right of adoption in Switzerland. This right is however forfeited as soon as they enter into an RP. The recognition of same-sex partnerships thus lies in a different area of public interest, which is situated within the framework of an increasing privatization of state social welfare benefits. An extremely revealing passage in this regard is included in the Swiss Federal Council’s commentary on the Partnership Law: “Ultimately it is about recognizing the benefits of mutual care and provision that same-sex partnerships can provide. In terms of being part of society and one’s social and personal development, it is generally desirable for people to engage in reliable relationships. In turn, it is pertinent that the state recognize these types of relationships under the law as so-called unions of responsibility (author’s emphasis).”[7]Furthermore, Volker Woltersdorff provides a pointed interpretation of this in the following: “In the course of the neoliberal reconstruction of family as a protective union providing social security [ Absicherungsgemeinschaft ], allowing the former functions of the social welfare state to be delegated to the family, even homosexual partnerships become a state interest. Social desolidarization is thus the historical condition for recognizing individual, non-heterosexual ways of living […]” [8]

So, in order for lesbians and gays to qualify as conformist addressees of the normalization offered by the Partnership Law, they must fulfill certain requirements. Along with the basic requirement of conforming to one of two genders according to legal criteria, desire is also subject to regulation. Regarding this, the Swiss Federal Council speaks of lesbian mothers and gay fathers as “bisexually oriented persons” that will be “taken into consideration,” but are not intended to form “the basis for the regulations.”[9] The terms lesbian, gay, heterosexual, and bisexual appear here as stable, unchangeable categories of identity and desire. Under the Partnership Law lesbian and gay parenting is not accounted for, nor is it even conceivable. The consequence is that children who live with lesbian and gay parents only have access to limited legal protection. A further requirement for conformity is being in possession of the right passport. In order to prevent so-called “sham partnerships” and “sham marriages,” consultations for a revision of the Swiss Civil Code and the Partnership Law are scheduled for summer 2008. The deliberations aim to implement regulations requiring both partners to be legal residents of Switzerland previous to partnership or marriage.

Conclusions

In Switzerland, lesbians and gays are currently confronted with an ambiguous offer of attaining normalization, which enables their acknowledgment/recognition only under certain conditions. This offer of normalization is only directed at those willing and able to adapt to the given structures, that is, those who demonstrate an ability to conform to the hetero-normative template. On the one hand, this conformity, which is the key to accessing more rights and greater visibility, relies on economic criteria. The Partnership Law is tailored to accommodate full-time, gainfully employed couples without children and aims to create “unions of responsibility.”[10] On the other hand, the hetero-normative legal framework calls for two legal subjects with clearly distinguishable genders. In addition, although the new Partnership Law inserts lesbian and gay partnerships into the structure of state-sanctioned relationships, they still remain hierarchically subordinate to the legal definition of marriage, which remains the basis for the norm.

Furthermore a pretty narrow vision of equality is promoted as marriage is the dominant frame of the debate on equal rights for lesbians and gay men. Therefore, the drive for same-sex registered partnerships undermines rather than supports the broader movement for social justice and democratic diversity. The separation of benefits and recognition from the status of being married, and the multiplication of democratically accessible forms of state recognition for partnerships in whatever way they come, would not only be a far more wide-reaching effort in this respect. It would also reflect the reality of not only lesbian and gay people’s living- and partnership arrangements in a more adequate way.


Notes:

[1] Parts of this paper will be published in the article “ Liebe ist…(Love is…) Visual Strategies of Normalization and the Swiss Partnership Law” that has been translated from German by Erika Doucette and Charlotte Eckler (Mesquita 2009).

[2] Partnerschaftsgesetz 2004: Federal Law on registered partnerships on same-sex couples from 18 June 2004 http://www.admin.ch/ch/d/sr/2/211.231.de.pdf (5 July 2007).

[3] Statement on the Part G 2002: Statement on the Federal Law on registerd partnerships for same-sex couples, 29 November 2002 http://www.admin.ch/ch/d/ff/2003/1288.pdf , 1310 (27 April 2007).

[4] Büchler, Andrea/Michel, Margot (2006): “Das Bundesgesetz über die eingetragene Partnerschaft gleichgeschlechtlicher Paare im Überblick.” In: Stephan Wolf (ed.), Das Bundesgesetz über die eingetragene Partnerschaft gleichgeschlechtlicher Paare, Bern: Stämpfli Verlag, 15.

[5] Swiss Federal Department of Justice and Police ( Eidgenössische Justiz und Polizeidepartment or EJPD) media announcement 2000: Media announcement of the Swiss Federal Department of Justice and Police from 25 October 2000 http://www.ejpd.admin.ch/ejpd/de/home/dokumentation/mi/2000/2000-10-250.html (17 July 2007).

[6] Foucault, Michel (1977 [1976]): Überwachen und Strafen. Die Geburt des Gefängnisses, Trans. Walter Seitter, Frankfurt/M.: Suhrkamp; Foucault, Michel (1983 [1975]): Sexualität und Wahrheit, Bd. 1: Der Wille zum Wissen, Trans. Ulrich Raulff und Walter Seitter, Frankfurt/M.: Suhrkamp; Engel, Antke (2005): “Die Verschränkung von Sexualität und Ökonomie. Subjektkonstituierung unter neoliberalen Vorzeichen.” In: Ernst, Waltraud (ed.), Leben und Wirtschaften – Geschlechterkonstruktionen durch Arbeit, Münster: LIT-Verlag, 136.

[7] Statement on the Part G 2002: Statement on the Federal Law on registerd partnerships for same-sex couples, 29 November 2002 http://www.admin.ch/ch/d/ff/2003/1288.pdf , 1291f (27 April 2007).

[8] Woltersdorff, Volker (2004): “Zwischen Unterwerfung und Befreiung. Konstruktionen schwuler Identität im Coming Out.” In: Helduser, Urte/Marx, Daniela/Paulitz, Tanja/Pühl, Katharina (eds.), under construction? Konstruktivistische Perspektiven in feministischer Theorie und Forschungspraxis, Frankfurt/M., New York: Campus Verlag, 146.

[9] Statement on the Part G 2002: Statement on the Federal Law on registerd partnerships for same-sex couples, 29 November 2002 http://www.admin.ch/ch/d/ff/2003/1288.pdf , 1311 (27 April 2007).

[10] Statement on the Part G 2002: Statement on the Federal Law on registerd partnerships for same-sex couples, 29 November 2002 http://www.admin.ch/ch/d/ff/2003/1288.pdf , 1292 (27 April 2007).

 

IWM Junior Visiting Fellows’ Conferences, Vol. XXIVReconciling the Irreconcilable
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Preferred citation: Mesquita, Sushila. 2009. Rights and the Politics of Normalization. In: Reconciling the Irreconcilable, ed. I. Papkova, Vienna: IWM Junior Visiting Fellows’ Conferences, Vol. 24.