Sexual Orientation in the Heteronormative Human Rights Law Regime
This article argues that human rights should not depend on one’s sexual orientation, and that a hetereonormative legal system marginalises people by treating them as objects of state power.
The point of departure for the article is an analysis by the Estonian Chancellor of Justice from 2011 in which the Chancellor found that the status quo that does not allow same-sex couples to give their relationship a legal status similar to marriage is unconstitutional, but this does not mean that same-sex couples should have a constitutional right to marriage. In other words, the Chancellor stated that same-sex couples should be able to get legal recognition for their relationships, but this does not have to be a marriage. This conclusion is found to be inaccurate as the Estonian Constitution does not actually protect people with only a certain sexual orientation, does not protect marriage as a union only between a woman and a man, and does not define family through marriage. Rather, the Constitution protects people within the institution of marriage by providing that both parties are equal, and protects family as such without proposing a model family. The article draws from a critical legal studies discourse and shows why the narrative around human rights and sexual orientation is flawed and harmful. The author criticises the approach according to which rights are given to people by human rights conventions or constitutions, and compares heteronormativity and sexual orientation to race (racism) and gender, and argues that these are all just socially construed concepts. Furthermore, a broader argument against fetishism and obsession with constitutions is made, suggesting that should the Estonian Constitution require differentiating between people based on their sexual orientation, we should seriously reconsider the value of a constitutional text like that.