The Dictionary of Homophobia (52 page)

Since then, this freedom of homosexual relations between consenting adults has never been challenged in these three countries. However, with regard to matters of age of consent, certain discriminatory acts appeared during the twentieth century, although these have since been repealed.

In Belgium in 1846, the minimum age of consent was set for the first time to fourteen years of age for everyone, then raised to sixteen years in 1912. It was not until 1965, for reasons comparable to those that instigated the
Mirguet
amendment in France in 1960 (which added homosexuality to a list of “social scourges,” along with alcoholism and prostitution), that Belgium increased the minimum age to eighteen years for homosexual relations, male or female. This law was repealed in 1985 to make the age of consent sixteen years for both homosexuals and heterosexuals.

Similarly to Belgium, Luxembourg had no regulations for age of consent until 1854, when it set the minimum age for all sexual relations at fourteen years. This law remained in place until 1971 when it established a separate age of consent for homosexuals, the same discriminatory measure that Belgium had instituted in 1965. It would not be until 1992 that the age of consent became the same for everyone, at sixteen years.

In the Netherlands, the age of consent for all relations was set at sixteen years in 1886. In 1911, the age was raised to twenty-one years for gays and lesbians, which remained in the Dutch penal code until 1971, when the minimum age for everyone was set at sixteen years.

The same decriminalization of homosexuality did not occur in Nordic countries at the end of the eighteenth century—the penal codes of the nineteenth century regularly punished gay male relations without exception. Lesbianism, too, was criminalized in Sweden and in Finland, but not in Norway or in Denmark.

The Nordic region’s decriminalization process began in 1930 in Denmark and in 1944 in Sweden when homosexuality between consenting adults was legalized. However, both countries introduced discriminatory laws with regard to separate ages of consent, set at eighteen years for homosexual relations, and fifteen for heterosexual relations. As well, these new laws included female homosexuality, which previously had not been mentioned. The laws were removed in 1976 in Denmark and in 1978 in Sweden, replaced by an age of consent of fifteen years for everyone. Other discriminatory measures in Danish criminal law, such as the “incitement” of homosexual relations, prostitution, and various sexual crimes and offenses, were progressively repealed between 1967 and 1981. Iceland, an autonomous Danish territory prior to becoming a republic in 1944, adopted the Danish legislation of 1930. Abrogation of its discriminatory aspects would have to wait until 1992, including the setting of a single age of consent for everyone at fourteen years.

Decriminalization
took longer in Norway and Finland. In Norway, the prohibition of sexual acts between men (but not women) was repealed in 1972; the age of consent was subsequently set at sixteen years for both homosexual as well as heterosexual relations. In Finland, homosexuality was decriminalized in 1971, but “promotion” of it remained illegal. Three laws continued to differentiate between homosexuals and heterosexuals: the age of consent (eighteen years versus sixteen years); the law prohibiting a person in a position of authority from abusing a minor, identified as someone between sixteen and twenty-one for homosexuals, compared to sixteen to eighteen years old for heterosexuals; and the specific offense of “enticement to homosexual relations.” These laws were finally repealed in 1999, thus completing the process of decriminalization in the northern European nations.

The 1960s–70s: A Social Turning Point
In order to measure the evolution of social attitudes in northern European countries toward homosexuals, it is important to refrain from interpreting too positively the absence of criminalization of adult homosexuality in the Benelux countries, or the decriminalization that took place in Denmark and Sweden. In the latter two countries, decriminalization did not mean that society and government suddenly considered homosexuality to be a “normal” or acceptable orientation, but rather as a pathology that was better handled by
medicine
or
psychiatry
than the penal system. The idea grew that society must intervene when it came to protecting its youth; in this way, the goal of legal reform was less an issue of decriminalization than the “modernization” of law in order to more efficiently protect minors against the “derailment” of their “normal” sexual development. The same tendency can be more clearly observed in countries like Belgium and Luxembourg, whose separate age of consent legislation flew in the face of more than 500 years without any legal restriction of homosexuality.

These initiatives in Belgium and Luxembourg appear to be a conservative reaction that seems anachronistic compared to the evolution of social attitudes in western European cities beginning in the mid-1960s. Cities such as Amsterdam or Copenhagen were emblematic of the new counterculture where political debate,
feminism
, sexual liberation, and alternative lifestyles came together. Over and above the radical proclamations of sexual liberation, the evolution of social and moral norms with regard to sexuality was tangible in every country, within the space of only a few years. Homosexuals everywhere came together, asserted themselves, and achieved an unprecedented visibility, decisively benefiting from this new progressive climate and actively taking part in it.

Soon, homosexuality was no longer spoken of in terms of a sexual pathology and came to be seen more as a variant of sexuality. The legal reforms of the 1970s (including those which abolished separate ages of consent for homosexuals) were the result of legislators becoming sensitive to the new sexual revolution. The speed with which laws protecting the rights of homosexuals followed decriminalization simply confirms the radical transformation of the perception of homosexuality in the region. The respect of one’s sexuality had become a fundamental human right, and it fell on legislators to act in cases where an individual’s sexuality made him subject to discrimination.

This evolution has also taken place as a result of the active role played by gay and lesbian organizations in each country. In the Netherlands and the Nordic countries, an important characteristic of the gay and lesbian movement is its unity through the existence of a large national gay and lesbian
association
. Most of these organizations were created quite early on, between 1945 and 1950, but their audience and their influence remained modest until the early 1970s, when their ranks swelled with new activists who toughened their stance and put public visibility at the heart of their every action. This unity, despite internal debates that were often quite intense, allowed them to establish themselves as legitimate institutions representing the gay and lesbian community to the public authorities and political parties, which looked to these organizations when establishing the new legislative frameworks for gay and lesbian rights.

Laws to Protect Gay & Lesbian Rights
Since the early 1980s, all of the countries in northern Europe (with the exception of Belgium) progressively introduced explicit legislative measures intended to protect gays and lesbians from discrimination based on their sexual orientation: Norway in 1981, Denmark and Sweden in 1987, the Netherlands in 1993, Finland in 1995, and finally Iceland and Luxembourg in 1996– 97. Generally, these measures modified existing anti-discriminatory laws designed to protect individuals or groups based on their ethnicity, race, or religion;“sexual orientation” was then added to this list. The discriminatory acts prohibited by this type of law vary slightly from one country to another, but two are consistently mentioned: acts that provoke or incite discrimination, hostility, hatred, or
violence
toward an individual or a group of people, and a refusal to provide a good or a service.

Most of the countries have also adopted (sometimes simultaneously, sometimes at a later date) legal measures protecting gays and lesbians from discrimination in the
workplace
. The Netherlands was first in 1994, followed by Finland (1995), Denmark (1996), Luxembourg (1997), Norway (1998), and finally Sweden (1999); these laws not only protect employees from being fired because of their sexual orientation, but also from being unfairly treated with regard to salary, promotion, responsibilities, or workplace conditions.

“New Laws”:The Recognition of Same-Sex Couples
In 1989, Denmark created a sensation by being the first country in the world to legally recognize same-sex couples. The Danish civil union, contrary to PaCS adopted in France ten years later, is an institution reserved specifically for same-sex couples, thus clearly intended to support “gay
marriage
.” Symbolically—though use of the word “marriage” is avoided—the civil union ceremonies held at city hall do not differ significantly from heterosexual civil marriages. The Danish civil union allows for the same rights and responsibilities as a civil marriage, with two exceptions: adoption by same-sex couples is restricted to stepchildren, and (as of a 1997 law) they do not have the right to medically assisted procreation. The Faeroe Islands, which belong to Denmark but enjoy a certain amount of legislative autonomy, have not adopted the civil union.

Many other northern European countries instituted a type of civil same-sex union inspired by the Danish model: Norway in 1993, Sweden in 1995, Iceland in 1996, the Netherlands in 2001, and Finland in 2001. In the case of the Netherlands, the union is also available to heterosexual couples. These various legislations all offer a legal framework very similar to that of civil marriage, but with the consistent exception of the rights to parenthood and adoption.

Finally, in Belgium, a proposal to allow same-sex unions (albeit with the same restrictions against parenthood and adoption) was approved by the Council of Ministers in 2001, voted in by the Senate in November 2002, and adopted by the Chamber in 2003. Further, in 2000 Belgium adopted a law on “legal cohabitation” whose focus was quite different: it did not recognize same-sex couples per se but rather was a contract of communal living between two people regardless of their sexual orientation and the nature of their relationship. Thus, it is as much available to same-sex couples as it is to a brother and sister or two friends. Essentially, it establishes financial solidarity between the parties involved, and dictates how goods acquired during cohabitation are handled in case of separation. In 2006 the Belgian senate passed legislation recognizing the rights of same-sex couples to be parents and to adopt.

In the span of just ten years, across almost all of northern Europe, a sort of legal standard has been achieved which grants same-sex couples essentially the same rights as heterosexuals in terms of lodgings, taxation, legacy, or civil unions, with the exception of issues regarding parenthood (be it shared parental authority over the child of one of the partners, access to medically assisted procreation for lesbians, or simply the adoption of a child by a same-sex couple). Legislation of civil unions has the merit of recognizing the right for gays and lesbians to officially unite, but paradoxically introduces a new source of discrimination by creating a status more or less specific to same-sex couples, while refusing full access to the right to marry. Concerning these distortions, Denmark in 1999 took an additional step forward by granting each partner the right to adopt the other’s children from a previous relationship.

The Netherlands was the first country to make a radical break with that logic of selective rights; since April 2001, two people of the same sex are authorized to enter into a civil marriage that is in every way the same as a marriage between heterosexuals, including the right to parenthood and adoption. In 2005, the Dutch cabinet passed a law relaxing rules prohibiting same-sex couples from adopting children from abroad. The Dutch civil union, legalized in 1998 and also open to heterosexual couples, continues to exist independent of marriage. By 2002, other northern European countries were engaged in a similar evolution, particularly Sweden, which in June of that year approved a law allowing same-sex couples to adopt children (including those from foreign countries), under the same conditions as heterosexual couples. Moreover, in 2005, Belgium became the first country in the world to officially recognize the International Day Against Homophobia (May 17).
—
Michel Celse

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