Order from Transfer
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Order from Transfer

Comparative Constitutional Design and Legal Culture

Edited by Günter Frankenberg

Constitutional orders and legal regimes are established and changed through the importing and exporting of ideas and ideologies, norms, institutions and arguments. The contributions in this book discuss this assumption and address theoretical questions, methodological problems and political projects connected with the transfer of constitutions and law.
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Chapter 5: Private but equal? Why the right to privacy will not bring full equality for same-sex couples

Nora Markard


The gender order remains one of the more contested sites of the constitutional order, despite the fact that sex equality has become one of the standardized commodities available at Günter Frankenberg’s global IKEA center. Notwithstanding the proliferation of constitutional and human rights guarantees ever since the 1948 Universal Declaration of Human Rights made the move from the equality of “all men” to that of “all human beings,” the meaning of sex equality remains contested both locally and at the international level. More recently, gender has been understood as encompassing a number of dimensions: not only the male/female binary in terms of both (biological) sex and (social) gender, but also the match between the two (gender identity4) and the matching – opposite-sex – desire (sexual orientation5). These expectations, as Adamietz calls them, are of course not universal: they are age-specific, racialized, dependent on bodily dis/abilities, etc., as gender always already intersects with other social inequalities. Among the many contested issues related to the gender order, this chapter will turn to those relating to sexual orientation. More specifically, it will examine how the framing of these legal issues in terms of constitutional rights affects their resolution. Considering constitutional court or supreme court decisions from different jurisdictions and times, it will trace the specific dynamics of privacy arguments as opposed to equality arguments by analyzing two topics: the decriminalization of same-sex sexual activity, and same-sex marriage. This chapter will focus on the arguments made, rather than delineating each jurisdictional context, in order to compare the dynamics of a privacy vs. an equality approach.

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