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From EU-induced Institutional Change to Normative Change: When Organizations Matter

0 Comments 🕔08.May 2014

This article is part of our Over the European Rainbow feature.

Zagreb Pride, June 19, 2010. Credit: Goran Zec

by Koen Slootmaeckers

The European Union (EU) is, as Commission president Barroso says, “above all and fundamentally a community of values.”[1] Not only is the EU founded on the “values of respect for human dignity, freedom, [and] human rights, including the rights of persons belonging to minorities,” the Union also sees as its mission promotion of these values in its relations with the wider world.[2] One way in which the EU follows up on this commitment is through the Enlargement policy, which functions as an important tool for influencing third countries.[3] Since the adoption of the Copenhagen criteria in 1993, the pre-accession period has become a process aiming at actively transforming candidate member states into ‘European’ countries, adhering to the constituent values of the EU. One of these values is respect for and protection of lesbian, gay, bisexual, and transgender (LGBT) people. Since the entry into force of the Amsterdam Treaty (1999), the Treaty establishing the European Community explicitly refers to ‘sexual orientation’,[4] thereby giving ground to the protection of LGBT people within the EU. A year later, the adoption of the Charter of Fundamental Rights of the European Union and the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation confirmed the EU’s commitment to protecting sexual minorities.

As recent studies of the impact of EU enlargement on the situation of LGBT rights in candidate member states have shown, the EU accession process has brought an end to some discriminatory policies; however, the high hopes for the EU enlargement’s impact are only partly justified.[5] This raises questions about the EU’s transformative power and whether the EU accession process can re-mold countries beyond skin-deep institutional and legal change. Is the EU able to drive social change and, more specifically, a normative shift, via the enlargement process? My aim here is to look at the latter question: Does the EU accession process contribute to the kick-off of a normative shift among the political elite?[6]

Based on the observation that societies host a number of different norms, of which some are perceived as legitimate and others as marginal and/or illegitimate, a normative shift is conceptualized as shifts in legitimacy of norms via norm empowerment.[7] The normative change process occurs in four phases: i) Norm Hegemony, referring to the status quo with the unquestioned dominance of one norm over others; ii) Framing Struggle, in which the status quo has been challenged by domestic actors and a battle is fought over the definition/frame of the issue; iii) Relative Superiority, the frame of the issue becomes accepted and the arguments shift from the frame to the policy implications; and iv) Stable Position, the new power balance between norms becomes stable and a new normative change process is needed to change it.[8] From this perspective, social movements and non-state actors are seen as norm entrepreneurs that strive to shift attention away from hegemonic norms to certain already existing, albeit marginalized, norms. Doing so, these actors seek to reconfigure the legitimacy structure of the ideational field of a society. In this article I look more closely at both the fifth (2004 and 2007) and sixth (2013) enlargement rounds and processes of normative change, asking whether the EU accession process has been able to drive a normative shift in LGBT-related norms among the political elites.

My main focus here is whether the EU accession process has contributed to an environment in which domestic actors – in this case LGBT organizations – can publicly challenge the existing dominant norms, and thus kick off the process of normative change. I argue that during the fifth enlargement round the EU did not succeed in creating such an environment favorable to normative change. LGBT organizations were marginally involved in the accession process, therefore not creating a momentum for the LGBT equality norms to challenge the existing homophobic ones. The sixth enlargement, on the other hand, is characterized by a greater involvement of LGBT organizations, which enable a normative struggle on LGBT rights to occur in Croatia. The findings of this article are based on analysis of 26 semi-structured interviews with Members of European Parliament, EU Commission officials, and LGBT activists (both from the regions and from ILGA-Europe).[9] The interviews were conducted between August 2012 and October 2013.

 

Straight to Accession

The fifth enlargement round marked the welcoming of 10 post-communist countries as well as Malta and Cyprus as new members of the EU. While this enlargement is generally perceived as a success story of the Union’s enlargement policy and its transformative power, local LGBT activists tend to disagree. For them, the EU accession process hardly did anything more than improve the countries’ legal standards. Even though the Copenhagen criteria could have significantly advanced the situation of LGBT people and organizations in the region, LGBT issues did not seem to be a priority of the EU during the pre-accession period. In the annual Regular Reports (now called Progress Reports, i.e., the annual reports monitoring candidate countries progress), LGBT rights were barely touched upon.[10] The EU interpreted its mandate on minority rights rather narrowly and considered other minorities, for example the Roma, of greater importance to the preparation of EU membership. Some of my interviewees (EU officials and activists alike) even suggested that not going beyond ethnic minorities, and thus refraining from pushing for LGBT rights, was a political decision of the EU.

LGBT rights were not completely excluded from the Enlargement agenda, however. Membership criteria clearly stipulate that existing EU legislation (cf. 2000/78/EC directive) has to be transposed into national law before accession. The enlargement process was characterized by a strong bias toward compliance with the acquis communautaire, which indeed ensured that all candidate countries adopted anti-discrimination legislation within the field of employment and occupation. The process by which these new laws were passed, however, has not contributed to an environment in which a normative shift is likely to occur. The strong acquis focus on conditionality created a technocratic process. Legislation was adopted due to top-down pressure from the EU, without a public debate on the issue. LGBT activists were only marginally involved in accession negotiations. When the issue was raised during this process, it was usually by other human rights organizations. As a consequence, LGBT issues were not visible in the public sphere, limiting LGBT activists’ opportunities to gain visibility and to publicly challenge heteronormative/homophobic norms.

As scholars have argued, visibility – seen as the initial attempts to challenge the existing norms that enter the space of public debate – is a necessary condition for the process of normative change to take off.[11] Yet the technocratic nature of the pre-accession process did not empower marginalized norms, kicking off a normative shift. Moreover, I argue that the technocratic enlargement process has contributed to a temporal stabilization of the heteronormative/homophobic norms. When LGBT issues became the topic of public debate after accession, the tone can at best be described as heteronormative, if not homophobic.[12] Politicians used homophobic discourses to gain political capital, claiming that the external (EU) pressure for LGBT rights is a threat to the nation, and that it is a conspiracy of the international gay lobby to undermine national identity.[13] Within this environment, LGBT activists did not succeed in challenging the hegemonic norms and the process of normative change did not take off. On the contrary, after accession, some countries turned back the clock on LGBT rights by banning gay prides, attempting to introduce homophobic legislation and sometimes succeeding in doing so, for instance in Lithuania where the government barred spreading information on homosexuality among minors.[14]

In sum, the fifth enlargement pre-accession process did not contribute to favorable conditions for LGBT activists to challenge homophobic/heteronormative norms, which would have started the process of normative change. Rather, the EU’s external pressure had an adverse effect on LGBT issues after accession, as politicians combined anti-EU and anti-LGBT discourses to gain political power and, in some cases, to introduce homophobic legislation. In the long run, a normative shift on LGBT issues should not be excluded, however. LGBT movements in Central and Eastern Europe have in recent years become more visible and are more able to challenge the existing normative system. While EU frames will most likely play a role in the normative struggles in these countries, the empowerment of LGBT organizations would presumably be due to the harsh backlash against LGBT rights after accession and the disappointment with the EU’s transformative power, rather than to the EU accession process as such.

 

When Organizations Matter

The limited successes of the EU in driving social and normative change in Central and Eastern Europe, especially regarding fundamental rights, have forced the Union to (re-)evaluate and reconstruct its strategy for future enlargements. One lesson learned from the fifth enlargement is that the fundamentals, i.e., the political Copenhagen criteria, and especially fundamental rights, have to come first; they should be key to the enlargement process. As part and parcel of the newly created chapter 23 of the acquis communautaire, which deals with fundamental rights, LGBT rights too have become more central in the accession process. Although this renewed approach to enlargement points at stricter conditionality, the technocratic character of the process has not increased. Despite the fact that new legislation on LGBT issues was largely adopted due to the EU pressure – to please the EU – the issues have been subject to social debates. Moreover, LGBT organizations have played a greater role in the entire accession process. Activists used the annual monitoring of the EU and the Progress Reports, issued by the Commission, as a tool and framework in their advocacy and campaigns.

The EU accession process did not only empower LGBT activism, giving them opportunities to influence the Croatian government, the process also contributed to the start of a normative struggle. The EU conditionality created a space for LGBT organizations to publicly challenge the dominant homophobic/heteronormative norms in Croatian society.[15] It has become impossible for those in power to ignore LGBT rights, as these issues have been ‘outed’ in public debate. Consequently, the normative change process reached its second phase: Framing Struggle. In this phase, actors do not aim to convince the other side of their arguments; rather they aim to be heard, mobilize, and define the issue.[16] LGBT activists relied strongly on the EU accession process as a framework of their cause and norms. They always framed their arguments in the context of European standards and values and the protection of EU documents. While these strategies, together with the EU pressure, were successful in bringing about legal change, it is yet to be determined whether the ‘new’ norms on LGBT issues have reached Relative Superiority, i.e., the third phase. The normative change process enters this phase when a shift in the legitimacy structure of frames is occurring; when ‘new’ frames are gaining dominance while others are becoming marginalized. The argument then is no longer about the frame of the issue, as this is by now accepted, but rather about policy implications. Additionally, the losing side of the struggle might then result in non-discursive measures in an attempt to reverse the situation.

Although it is too soon to conclude whether this third stage has been reached, I identified some developments suggesting that the (EU-centered) frames used by LGBT activists have found resonance and have become accepted by those in power in Croatia. One of these developments is the pride events in the coastal town of Split. After the first Split pride was violently met by counter demonstrators in 2011, a year later Prime Minister Zoran Milanović called on the residents of Split to show tolerance and accept the “standard democratic practice of Western Europe.”[17] The 2013 pride was joined by both the Minister of Foreign and European Affairs, Vesna Pusić, and the newly elected mayor of Split, Ivo Baldasar. Both politicians referred to European values and standards in their speeches on the event. These examples show that the European frame of LGBT equality has been accepted by (part of) the Croatian elite. Additionally, I see signs of desperate, non-discursive attempts of the losing side of the normative struggle to reverse the situation in the recent referendum on the constitutional definition of marriage as a union between a man and a woman (December 1, 2013). After the government had announced it would draft a life partnership bill to regulate and protect same-sex couples (spring 2013), the civilians’ initiative U Ime Obitelji (In the Name of the Family) started collecting signatures to demand a referendum on the constitutional definition of marriage. After this initiative succeeded in collecting almost twice the amount of required signatures, a referendum was held and Croatia voted in favor of the introduction of a heterosexual definition of marriage in the constitution (65 percent voted for and 35 percent against, with a turnout of 37 percent). Despite these results, the government continued pushing for the life partnership bill disregarding the initiative’s ‘protect the family’ discourse. As it seems that the initiative’s frames no longer resonate with those in power, U Ime Obitelji now uses the results of the referendum as a legal and democratic tool to block the progress of LGBT rights in Croatia.

This turn to legal arguments can be interpreted as a non-discursive attempt to reverse or block the progress of LGBT rights in Croatia. Both the discourse of politicians and the shift toward legal arguments by the opponents suggest that the framing of LGBT issues is no longer contested; rather, policy implications appear to predominate the debate. This implies that the process of normative change has reached the Relative Superiority phase. Although future developments in Croatia will have to confirm whether the normative struggle on LGBT norms has indeed reached this third stage or whether the above-described events are still part of the Framing Struggle, it is clear that Croatia, at the moment, is going through a process of normative change.

To summarize, while the EU accession process of Croatia did not bring forth social change (given the results of the referendum), its impact appears not to be as skin-deep as it was for the other countries that joined the EU in 2004 and 2007. Although the exact stage or the outcome of the normative struggle is yet to be determined, it is clear that the EU accession process of Croatia has contributed to an environment in which the process of normative change could take place.

It is important to note that, even though the EU accession process can contribute to favorable conditions, i.e., public contestation of norms that facilitate the start of a normative change process, the EU itself cannot force a normative shift upon any of its candidate member states. Contrary to legal change, which can be demanded from aspirant member states via the conditionality principle, the process of normative change is and remains inherently a domestic struggle. External pressure then might be a necessary element for the process to start, but it is insufficient. Domestic actors have to drive the framing of and the mobilization around a norm. Therefore the transformative power of the EU enlargement process will remain limited, as it will never be able to substitute the domestic agency involved in political contestation.

Future research in the EU enlargement process thus needs to continue its recent domestic shift, focusing on domestic factors that enhance or limit the transformative power of the EU. However, future studies should not only focus on state or institutional factors, but also incorporate the role of domestic non-state actors in processes of social and normative change as part of the wider Europeanization process.

 

Koen Slootmaeckers is a PhD candidate at the School of Politics and International Relations at Queen Mary, University of London. His dissertation analyzes the impact of the EU accession process on the internal dynamics of the LGBT movement in the Western Balkans. Koen Slootmaeckers is also an affiliated researcher at Leuven International and European Studies (LINES) at the University of Leuven. His primary research interests lie within the field of gender studies, sexuality studies, and social movements, with a specific interest in lesbian, gay, bisexual, and transgender (LGBT) topics. Koen’s work has been published in, among others, Politics, and the Journal of Homosexuality.

 

This article is part of our Over the European Rainbow feature.


[1] José Manuel Barroso, “#Europe Is Above All and Fundamentally a Community of Values,” Twitter.com, November 5, 2013, <https://twitter.com/barrosoeu/status/397786886166822912>.

[2] Article 2 and 3, Treaty on the European Union.

[3] Allan F. Tatham, Enlargement of the European Union (Alphen aan den Rijn, The Netherlands: Kluwer Law International, 2009).

[4] Article 13, Treaty Establishing the European Community, created by Article 2.7, Treaty of Amsterdam.

[5] Lela M. Ames, “Beyond Gay Paree: What Does the Enlargement of the European Union Mean for Same-Sex Partners,” Emory International Law Review 18 (2004): 503–54; Dimitry Kochenov, “Democracy and Human Rights-Not for Gay People: EU Eastern Enlargement and its Impact on the Protection of the Rights of Sexual Minorities,” Texas Wesleyan Law Review 13 (2006): 459–96; Travis J. Langenkamp, “Finding Fundamental Fairness: Protecting the Rights of Homosexuals Under European Union Accession Law,” San Diego International Law Journal 4 (2003): 437–66.

[6] Changes in public attitudes toward LGBT people are beyond the scope of this paper. Rather, I look at changes in public discourses on the topic, more specifically whether a change has occurred among the political elite.

[7] Julia Szulecka and Kacper Szulecki, “Analysing the Rospuda River Controversy in Poland: Rhetoric, Environmental Activism, and the Influence of the European Union,” East European Politics 29, no. 4 (December 17, 2013): 397–419.

[8] Szulecka and Szulecki, “Analysing the Rospuda River Controversy in Poland,” 403–04.

[9] ILGA-Europe is the European brand of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA).

[10] Ames, “Beyond Gay Paree.”

[11] Szulecka and Szulecki, “Analysing the Rospuda River Controversy in Poland,” 403.

[12] See, e.g., Conor O’Dwyer, “From Conditionality to Persuasion? Europeanization and the Rights of Sexual Minorities in Post-Accession Poland,” Journal of European Integration 32, no. 3 (2010): 229–47; Conor O’Dwyer, “Does the EU Help or Hinder Gay-Rights Movements in Post-Communist Europe? The Case of Poland,” East European Politics 28, no. 4 (December 2012): 332–52.

[13] Richard Mole, “Nationality and Sexuality: Homophobic Discourse and the ‘National Threat’ in Contemporary Latvia,” Nations and Nationalism 17, no. 3 (2011): 540–60.

[14] In 2010, the Law on the Protection of Minors against the Detrimental Effects of Public Information entered into force. The initial draft explicitly mentioned any information about homosexuality as detrimental, regardless of content. After strong international pressure, including from the European Parliament, the bill was amended. The law no longer explicitly mentions homosexuality. However, it now says that any information regarding sexuality and all information undermining the constitutional conception of family is considered detrimental. This change, however, does not mean that the law is not homophobic in nature. Because the constitutional conception of family is a heterosexual one, any information regarding homosexuality, under this law, can be considered damaging.

[15] According to local activists, the media has been reporting on LGBT issues. Additionally, after the opening of Chapter 23 in the EU negotiations, the issue of LGBT became a pertinent political topic.

[16] Szulecka and Szulecki, “Analysing the Rospuda River Controversy in Poland,” 404.

[17] Msnbc.com news services, “In Unprecedented Move, Croatian Ministers to Join Disputed Gay Pride March,” June 6, 2012, <http://worldnews.nbcnews.com/_news/2012/06/06/12085915-in-unprecedented-move-croatian-ministers-to-join-disputed-gay-pride-march>.

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