Why I decided to teach a LGBT law course at the University of Edinburgh - Dr Paul Behrens

University courses on law and how it relates to LGBT matters remain a rarity, writes Dr Paul Behrens

Laws against 'gay propaganda' in Eastern Europe, a ban on conversion 'therapy' in Scotland, 'Don't Say Gay' in Florida, the debate on the rights of transgender people – hardly a day passes without some news that connect LGBT matters to the law.

The discussion is often confusing. Academic examination could bring some clarity and that makes it important that universities explore these topics with a critical eye.

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But here is the strange thing – university courses on this are still a rarity. Courses on other parts of LGBT life do, of course, exist. But until now, there did not seem to be a university course in Scotland dedicated to LGBT law. That seems a missed opportunity.

A general view of Teviot Row House Student Union at the University of Edinburgh. Picture: PAA general view of Teviot Row House Student Union at the University of Edinburgh. Picture: PA
A general view of Teviot Row House Student Union at the University of Edinburgh. Picture: PA

At the University of Edinburgh, where I teach international law, I had dealt with LGBT rights for years, in research and discussions with students, with several of them wanting to write dissertations in this field. That was the beginning of an idea to create a specific course on the matter. We ran it for the first time this year – it is a Masters course, called 'LGBT Rights: A Legal Perspective'.

Getting it on the curriculum and getting enough interested students to fill the course was the easy part. Teaching it was quite a different story.

Not so much because of the sensitivity of the issues. True enough, topics like transgender rights have seen passionate debate, fuelled often by personal attacks. But that is where the legal approach can help. Legal discussions tend to be calmer; they follow particular rules and usually at least the basis of the debate is clear – for us, it often came from human rights law.

And the law has its own surprises. To my students, it must have seemed strange the European Court of Human Rights, more than 20 years ago, considered the legal recognition of transgender identity a human right, while some voices in the 'gender-critical movement' today still deny that trans people even exist.

Dr Paul Behrens, from the University of EdinburghDr Paul Behrens, from the University of Edinburgh
Dr Paul Behrens, from the University of Edinburgh

Our students came from a wide range of backgrounds – some already had experience in legal practice, others came from the academic field. Many were from Asian countries, including those where LGBT issues, such as same-sex marriage, are currently at the centre of public debate – Thailand and India among them.

It was interesting to see the reactions of all of them to the various LGBT topics we discussed, including the criminalisation and decriminalisation of homosexuality, discrimination of LGBT people, conversion 'therapy', same-sex unions and, in a special seminar given by my colleague Sean Becker, judicial attitudes towards LGBT matters.

The problems of teaching the course lay in a different field. In the past 15 years alone, there has been a huge amount of judgments in this field, UN reports and opinions, recommendations and resolutions by parliaments. How do you squeeze all of that into the space of ten seminars? And where do you make cuts, when everything is so very interesting, including the historical background?

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It was in fact one of the 'side issues' that proved, as students told me later, to be one of the most fascinating topics we discussed. It was the diary of a Yorkshire farmer, who, in 1810 – at a time when gay men in England still faced the death penalty – suggested that same-sex attraction existed from childhood on, that it must be seen as natural, and that it seems cruel to punish homosexuality with death. 1810! Some commentators of our age might want to take note.

I like points like these which challenge perceptions and stereotypes – about the past, about the way this or that community thinks, and so forth. Among them is a letter written by Sigmund Freud in 1935, which has significance for our understanding of conversion 'therapy' even today. A woman had asked him if he would 'treat' her gay son. The father of psychoanalysis wrote back saying that homosexuality was “nothing to be ashamed of, no vice, no degradation; it cannot be classified as an illness; we consider it to be a variation of the sexual function”. It actually took until 1990 before homosexuality was removed from the International Classification of Diseases.

True enough, sometimes those swimming against the current have to wait a long time before history catches up with them. But when it does, it can be a triumph.

In 1970 Richard Baker and James McConnell tried to obtain a marriage licence in Minnesota – way before even civil unions were allowed in any part of the world. When their attorney tried to address the Minnesotan Supreme Court on the matter, one of the justices reportedly turned his chair around, so that he would not have to face them.

More than 40 years later, the US Supreme Court finally ruled that marriage rights had to be available for same-sex couples all over the United States. There is a lovely picture of Baker and McConnell at that time, now in their 70s, holding up a newspaper that celebrates this win – late vindication on a matter that should always have been considered a human right.

Topics like these and the insights they provide about the law are among the many reasons to run a course on LGBT rights. My hope is that more of my colleagues will be encouraged to do so.

Teaching a topic of such relevance allows you to engage with arguments on both sides of the divide and make a valuable contribution to the debate. And it is fun. Few things in academic life are as rewarding as the chance to discuss with your students subjects that really matter to them and their friends, which they find truly fascinating and are happy to debate with passion and wit.

- Dr Paul Behrens teaches the course 'LGBT Rights: A Legal Perspective' at the University of Edinburgh. Together with Sean Becker, he has edited 'Justice After Stonewall: LGBT Life Between Challenge and Change' (Routledge 2023).

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