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Lisa Vanhala
To cite this article: Lisa Vanhala (2009) Anti-discrimination policy actors and their use of
litigation strategies: the influence of identity politics, Journal of European Public Policy, 16:5,
738-754, DOI: 10.1080/13501760902983473
Download by: [Facultad Latinoamericana de Ciencias Sociales] Date: 06 February 2017, At: 16:42
Journal of European Public Policy 16:5 August 2009: 738 754
INTRODUCTION
Litigation as a political strategy and courts as venues to influence public policy
are more important than ever before for collective actors. The institutionaliza-
tion of human rights across the European Union (EU) has resulted in a vertically
integrated legal regime conferring judicially enforceable rights on legal persons
within the jurisdiction of European Community (EC) law (Haltern 2003;
Rittberger and Schimmelfennig 2006). As a result, private actors such as indi-
viduals and interest groups have seen their policy-influencing power as private
enforcers of entrenched rights grow. In recognition of this, there is a growing
interest amongst political scientists in the way groups use strategic litigation
to influence policy-makers and mobilize constituencies (e.g. Mazey 1998;
Alter and Vargas 2000; Borzel 2006; Cichowski 2007).
Existing research on the use of litigation strategies has tended to rely on ana-
lyses of political and legal opportunity structures or resource mobilization by
collective actors. The labels designate tendencies rather than neatly segregated
camps, and more recent work has tended to adopt elements of both types of
The quote hints at the degree of rivalry, but also acknowledges the essential role
that each group plays in the way they carry out their strategies to advance a more
fundamental goal of achieving equality.
750 Journal of European Public Policy
A first phase of LGBT activism involved campaigning for the decriminalization
of homosexual (male) offences and fighting against the unequal age of consent
laws. Individual activists and small grassroots organizations relied on protest,
and subsequent reactive litigation strategies whereby activists specifically flaunted
discriminatory laws and urged the courts, as defendants, to turn over these laws
(Harlow and Rawlings 1992). An example of the use of a reactive legal strategy
was the response of OutRage! to police harassment and the aggressive prosecution
of gay men for crimes, such as kissing and fondling in public, for which heterosex-
ual couples were rarely arrested (Wintemute 1995). The group organized a mass
kiss-in in Piccadilly Circus with the expectation of arrest and legal prosecution.
While Outrage! may be less likely to adopt litigation because of its generally
alternative, radical approach and preference for protest, it does not exclude legal
mobilization completely from consideration; instead its collective action frames
prescribe how the law should be used: the legal mobilization effort is part of a
broader direct action and media attention-grabbing campaign. A spokesman
from OutRage! in interview confirmed that the group has a cohort of lawyers
willing to provide legal advice on a pro bono basis when necessary, confirming
their ability to deploy a reactive litigation strategy when they feel it is useful.
During a second phase of activism there was a shift from the idea of keeping the
state off our backs to a rights-based approach that demands anti-discrimination
legislation and partnership rights (Berger 2004). Strategy choice during this
phase was largely influenced by developments on the European level and can be
explained by complementing a political opportunity structure approach with an
understanding of the role of meaning frames. Facing a harsh domestic climate
under the Thatcher government, Stonewall turned to European institutions.
Together with a number of other European groups, Stonewall attempted the
first systematic lobbying of the Commission in 1990 (Bell 1999). On the European
level, it was the Parliament which showed the greatest concern about discrimi-
nation in general and in 1984 it passed a Resolution on Sexual Orientation Dis-
crimination in the Workplace (Bell 1999). A decade later it commissioned a
document entitled Equal Rights for Homosexuals and Lesbians in the EC (the
Roth Report), which addressed the unequal age of consent, discrimination in
employment and the armed forces, the exclusion from marriage laws, the exclusion
from adoption and custody, and the prohibition of public funds for lesbian and gay
projects. However, a lack of political will in the other branches of the EU, particu-
larly the Council, meant that the issue of discrimination based on sexual orien-
tation was largely neglected by the institutions (Clapham and Weiler 1993)
until the anti-discrimination issue was pushed on the agenda during the Amster-
dam Treaty negotiations. In this period, Stonewall relied on proactive litigation
strategies to try and enhance and expand human rights protections.
The case of P v. S and Cornwall County Council (1996) before the EJC held that
the dismissal of an individual following gender reassignment was unlawful dis-
crimination on the grounds of her sex. The legal strategy successfully expanded
existing legal protections, which when created were targeted only towards par-
ticular groups (in this case the legislation had been intended to protect women
L. Vanhala: The influence of identity politics 751
from discrimination), to protect other groups also in this case, transsexuals
(Poulter 1998; Fredman 2002). Stonewall, relying on the EU equal treatment
legislation and the victory in P v. S, tried to deploy the same strategy but was ulti-
mately unsuccessful in another case which was meant to extend sex discrimination
protections to sexual orientation in general. The ECJ decisively rejected a claim,
in Grant v. South-West Trains Ltd (1998), that refusal to accord equal employ-
ment benefits to same-sex partners as to heterosexual partners amounted to sex
discrimination in breach of EC law.
Despite the loss, Stonewall considers the Grant case a success because, when
combined with a lobbying effort, the case highlighted the hierarchy of equality
protections in the law and eventually led to the adoption of further equality pro-
tections. While socio-legal literature has often taken a sceptical approach,
arguing that groups may win in court but lose in society (e.g. Rosenberg
1991; Conant 2002), the case of Stonewall and Grant highlights that the oppo-
site can also be true: groups losing in court may highlight how unjust the law is
and can propel policy action, encourage coverage in the media, or raise rights
consciousness among the groups (potential) membership.
At first glance, the turn to a litigation strategy by Stonewall can be explained
through a political opportunity approach: lack of domestic and European pol-
itical opportunity led to the subsequent decision to adopt a domestic-based EC
legal strategy (Hilson 2002). This, however, is not the whole picture. From its
inception, Stonewalls identity and meaning frames challenged existing frames
within the gay liberation movement, which were generally sceptical of liberal
rights (Hilson 2002). It was these novel meaning frames which then pushed
the organization to lobby and litigate for an expansion of human rights protec-
tions to include the LGBT community. OutRage!, an unconventional group
which had been more sceptical of a rights identity, was less concerned with
political opportunity and legal opportunity in the first place, which partially
explains their use of reactive litigation strategies.
Unlike the disability movement which has adopted a rights-based, equality-
seeking discourse and is generally supportive of the use of strategic litigation,
there are still important gay rights organizations (and academics) that are scep-
tical about an individual rights-based approach to combating discrimination
based on sexual orientation (Berger 2004). For them, the debate is not
simply one of eliminating discrimination but of re-conceiving human relations
more generally (Clapham and Weiler 1993). However, this does not mean that
organizations that adopt this type of identity and discourse necessarily eschew
litigation outright: rather, the type of litigation strategy they use may be instru-
mental in their protest and awareness-raising efforts.
CONCLUSIONS
In this paper I assessed the existing literature on the use of litigation strategies by
collective actors. Inroads have been made into questions of strategy choice but
there is also a growing consensus that the crude picture of a groups decision to
752 Journal of European Public Policy
turn to the courts based on political or legal opportunity structures and
resource-requirement thresholds is inadequate. First, collective actors do not
operate within political and legal opportunity structures in isolation. They are
presented with opportunities for competition, conflict and co-operation with
other actors in a multi-organizational field. In some cases, such as the LGBT
movement studied here, a division of labour with one group focusing mainly
(but not exclusively) on direct action and the other concentrating on lobbying
and litigation may develop. Second, the shared and diverging meaning frames
across and within organizations may circumscribe a set of appropriate strategies
available to them, before questions of resources or opportunity are even raised.
The example of the disability rights movement demonstrates that the framing
processes and the construction of new meanings of the concept of disability
resulted in the use of litigation strategies possessing great legitimacy among
adherents of the movement. The case studies illustrate the importance of
group identity in strategy decisions; they do not suggest that counter-cultural
groups are fundamentally opposed to accessing favourable political and legal
opportunity structures, as long as use of those tactics does not jeopardize
their survival in terms of membership or reputation. Nor do they suggest that
instrumental groups will never use protest as a tactic to achieve policy goals.
Instead, this paper highlights the need for a more systematic, analytical frame-
work which acknowledges that the identity and meaning frames of organizations
also matter in organizational strategy decisions.
ACKNOWLEDGEMENTS
I am grateful to Katrin Auel, Dan Kelemen and Tim Hicks for advice on earlier
versions of this paper. I thank the anonymous JEPP referees for their helpful
comments.
NOTES
1 This classification represents ideal types and is potentially less useful when consider-
ing organizations which are multifaceted in character, organizational form, resource
base and/or membership. These types of organizations, for example Greenpeace, are
presented with particular challenges and opportunities in strategy choice. While they
potentially have greater resources than groups which are purely unconventional
because of a broad-based credit card membership which pulls in resources and
allows them to engage in a wide spectrum of tactics ranging from direct action to
litigation (Hilson 2002), they must also balance the demands of different parts of
the membership. For a fuller discussion of the heterogeneity of organizational
forms adopted by social movement activists, see Rao et al. (2000).
L. Vanhala: The influence of identity politics 753
2 Council Directive 2000/43/EC of June 29, 2000; Council Directive 2000/78/EC
of November 27, 2000.
3 The DRC and the other equality commissions wrapped up their work in September
2007 when the single equality body, the Commission for Equality and Human
Rights, was established.
4 Local Government Act 1988 (c. 9). Accessed on December 12, 2007 at http://www.
opsi.gov.uk
REFERENCES
Alter, K. and Vargas, J. (2000) Explaining variation in the use of European litigation
strategies: European Community law and British gender equality policy, Compara-
tive Political Studies 33: 45282.
Andersen, E. (2005) Out of the Closets and into the Courts: Legal Opportunity Structure
and Gay Rights Litigation, Ann Arbor, MI: University of Michigan Press.
Banks, R. (1999) More than law: advocacy for disability rights, in M. Jones and L.A.
Basser Marks (eds), Disability, Divers-ability and Legal Change, The Hague: Martinus
Nijhoff Publishers.
Barnes, C. (2002) Introduction: Disability, policy and politics, Policy and Politics 30:
31118.
Bell, M. (1999) Shifting conceptions of sexual discrimination at the Court of Justice:
from P v. S to Grant v. SWT, European Law Journal 5: 6381.
Bell, M. (2002) Anti-Discrimination Law and the European Union, Oxford: Oxford
University Press.
Benford, R. and Snow, D. (2000) Framing processes and social movements: an over-
view and assessment, Annual Review of Sociology 26: 61139.
Berger, N. (2004) Tensions in the Struggle for Sexual Minority Rights in Europe: Que(e)ry-
ing Political Practices, Manchester: Manchester University Press.
Borzel, T. (2006) Participation through law enforcement: the case of the European
Union, Comparative Political Studies 39: 12852.
Bouwen, P. and McCown, M. (2007) Lobbying versus litigation: political and legal
strategies of interest representation in the European Union, Journal of European
Public Policy 14(3): 42243.
Cichowski, R. (2007) The European Court, Civil Society and European Integration,
Cambridge: Cambridge University Press.
Cichowski, R. and Stone Sweet, A. (2003) Participation, representative democracy, and
the courts, in B. Cain, R. Dalton and S. Scarrow (eds), Democracy Transformed?
Expanding Political Opportunities in Advanced Industrial Democracies, Oxford:
Oxford University Press.
Clapham, A. and Weiler, J. (1993) Lesbians and gay men in the European Community
legal order, in K. Waaldijk and A. Clapham (eds), Homosexuality: A European
Community Issue, Dordrecht: Martinus Nijhoff Publishers.
Conant, L. (2002) Justice Contained: Law and Politics in the European Union, Ithaca,
NY: Cornell University Press.
Epstein, L. (1985) Conservatives in Court, Knoxville, TN: University of Tennessee Press.
Fredman, S. (2002) Discrimination Law, Oxford: Oxford University Press.
Gamson, W. and Meyer, D. (1996) Framing political opportunity, in D. McAdam,
J. McCarthy and M. Zald (eds), Comparative Perspectives on Social Movements,
Cambridge: Cambridge University Press.
Goffman, E. (1974) Frame Analysis, Boston, MA: Northeastern University Press.
Haltern, U. (2003) Pathos and patina: the failure and promise of constitutionalism in
the European imagination, European Law Journal 9: 1444.
754 Journal of European Public Policy
Hansford, T. (2004) Information provision, organizational constraints, and the
decision to submit an Amicus curiae brief in a US Supreme Court case, Political
Research Quarterly 57: 21930.
Harlow, C. and Rawlings, R. (1992) Pressure Through Law, London: Routledge.
Hilson, C. (2002) New social movements: the role of legal opportunity, Journal of
European Public Policy 9(2): 23855.
Holyoke, T. (2003) Choosing battlegrounds: interest group lobbying across multiple
venues, Political Research Quarterly 56: 32536.
Jeffery-Poulter, S. (1991) Peers, Queers and Commons: The Struggle for Gay Law Reform
from 1950 to the Present, London: Routledge.
Jones, M. and Basser Marks, L.A. (1999) Disability, Divers-Ability and Legal Change,
The Hague: Martinus Nijhoff Publishers.
Kaplan, M.B. (1997) Sexual Justice: Democratic Citizenship and the Politics of Desire,
London and New York: Routledge.
Kelemen, R.D. (2003) The EU rights revolution: adversarial legalism and European
integration, in T. Borzel and R. Cichowski (eds), The State of the European
Union: Law, Politics and Society, Oxford: Oxford University Press.
Kitschelt, H. (1986) Political opportunity structures and political protest: anti-nuclear
movements in four democracies, British Journal of Political Science 16: 5785.
Kriesi, H. (1995) New Social Movements in Western Europe: A Comparative Analysis,
London and New York: Routledge.
Lent, A. (2003) The transformation of gay and lesbian politics in Britain, The British
Journal of Politics and International Relations 5: 2449.
March, J. and Olsen, J. (1998) The institutional dynamics of international political
orders, International Organization 52: 94369.
Mazey, S. (1998) The European Union and womens rights: from the Europeanization
of national agendas to the nationalization of a European agenda?, Journal of European
Public Policy 5(1): 13152.
McCarthy, J. and Zald, M. (1977) Resource mobilization and social movements: a
partial theory, American Journal of Sociology 82: 121241.
Morag-Levine, N. (2003) Partners no more: relational transformation and the turn to
litigation in two conservationist organizations, Law and Society Review 372:
457509.
Oliver, M. (1983) Social Work with Disabled People, Basingstoke: Macmillan.
OutRage! Website. http://www.petertatchell.net/outrage/, accessed April 2005.
Poulter, S. (1998) Ethnicity, Law and Human Rights: The English Experience, Oxford:
Oxford University Press.
Rao, H., Morrill, C. and Zald, M.N. (2000) Power plays: how social movements
and collective action create new organizational forms, Research in Organizational
Behaviour 22: 23982.
Rittberger, B. and Schimmelfennig, F. (2006) Explaining the constitutionalization of
the European Union, Journal of European Public Policy 13: 114867.
Rosenberg, G. (1991) The Hollow Hope: Can Courts Bring About Social Change?,
Chicago: University of Chicago.
Solberg, R. and Waltenburg, E. (2006) Why do interest groups engage the judiciary?
Policy wishes and structural needs, Social Science Quarterly 87: 55872.
Waddington, L. (1999) The European Communitys response to disability, in M.
Jones and L.A. Basser Marks (eds), Disability, Divers-ability and Legal Change,
The Hague: Martinus Nijhoff Publishers.
Wintemute, R. (1995) Sexual Orientation and Human Rights: The United States Consti-
tution, the European Convention and the Canadian Charter, Oxford: Clarendon Press.