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Journal of European Public Policy

ISSN: 1350-1763 (Print) 1466-4429 (Online) Journal homepage: http://www.tandfonline.com/loi/rjpp20

Anti-discrimination policy actors and their use


of litigation strategies: the influence of identity
politics

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

To link to this article: http://dx.doi.org/10.1080/13501760902983473

Published online: 16 Jun 2009.

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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

Anti-discrimination policy actors and


their use of litigation strategies: the
influence of identity politics
Lisa Vanhala

ABSTRACT Paralleling the institutionalization of human rights in European


Community (EC) law is a growing body of literature on the use of strategic litigation
by policy actors to expand or enforce those rights. Until recently however, relatively
little scholarly attention has been paid to the full range of factors which influence the
use of strategic litigation by organizational actors. This paper assesses existing
explanations of strategy choice and finds that the emphasis on political and legal
opportunity approaches and resource-mobilization explanations has led to a
neglect of other, potentially important, variables. I aim to remedy this gap in the
literature by suggesting that the identity politics and framing processes of a social
movement may play a significant role in influencing the take-up of a litigation strat-
egy. Case studies of the disability movement and the lesbian and gay movement in
the United Kingdom illustrate how these variables can shape strategy choice.
KEY WORDS Human rights; interest group; legal opportunity; political
opportunity; social movements; strategic litigation.

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

Journal of European Public Policy


ISSN 1350-1763 print; 1466-4429 online # 2009 Taylor & Francis
http://www.informaworld.com/journals
DOI: 10.1080/13501760902983473
L. Vanhala: The influence of identity politics 739
approaches to create frameworks to explain the decision by collective actors
in particular policy fields to take up a litigation strategy. However, the compre-
hensiveness of these approaches which focus on structure and cost benefit
calculations as the primary (or sometimes sole) determinants of strategy
choice is questionable. Explanations of strategy choice have neglected recent
advances in the theoretical literature on social movement analysis and identity
politics.
This neglect is even more worrying in light of recent empirical findings on the
attitudes of collective actors towards the use of litigation as a policy-influencing
strategy. Daniel Kelemen (2003) in a survey administered to 1,014 EU and
national-level interest groups drawn from the Commissions database of EU-
level Civil Society Organizations (CONECCS) in which 412 responses were
received found that of the majority of groups (70 per cent) that had never
used litigation, only 10.2 per cent replied that they are interested in using liti-
gation, but various obstacles prevent us from doing so, while the remaining
89.8 per cent indicated that they prefer to avoid the use of litigation, as it
does not fit with our general approach. Interestingly, the survey respondents
said that lack of access was the least important reason in their choice not to
litigate. In sum, the results suggest that factors other than access or resources
play a crucial role in strategy decisions.
This significant contrast between the assumptions and hypotheses of existing
literature and the survey findings raise some important questions. How far can
explanations based mainly on considerations of access and opportunity take
us in assessing strategy choice? Are there other factors which may be equally
or even more important in understanding an organizations decision to use
the courts?
To answer these questions, this paper probes the existing literature and then
considers what light a theoretical strand developed in the literature on sociologi-
cal-institutionalism may shed on these questions. I explore the factors which
may influence meso-level legal mobilization and explore these propositions in
case studies of the disability movement and the lesbian, gay, bisexual and trans-
sexual (LGBT) movement in the UK. The UK case is interesting because the
effects of this phenomenon of strategic litigation to enforce and expand on
human rights protections may be particularly potent in a national political
setting which possesses a traditional aversion to the concept of entrenched
individual rights.

EXISTING EXPLANATIONS OF STRATEGY CHOICE


Opportunity and access-based explanations
Much of the literature attempting to explain the turn to litigation by interest
groups has (either implicitly or explicitly) incorporated political or legal oppor-
tunity structure (POS and LOS) approaches (Kitschelt 1986). These studies
have focused largely on factors such as institutional access, procedural
740 Journal of European Public Policy
requirements and the receptivity of policy-makers to explain strategy choice
(Conant 2002; Andersen 2005; Cichowski 2007). Hilson (2002) argues that
a lack of political opportunity may influence the adoption of litigation as a
strategy in place of lobbying, and that the choice of protest as a strategy may
be influenced by poor political and legal opportunities (Hilson 2002: 250).
Bouwen and McCown (2007) hypothesize that increasing deadlock in one
branch of government will encourage interest groups more to pursue strategies
targeting the other branch and the congruence between an interest groups pre-
ferences and that of a branch of government will encourage it to develop influ-
ence strategies in that branch rather than the other (Bouwen and McCown
2007: 431). These hypotheses all focus on the barriers and incentives to effective
lobbying and litigation; they argue that the political environment shapes the
decisions of collective actors.
However, there are a number of difficulties with these approaches. First,
opportunity-based explanations are unable to account for many scenarios, docu-
mented in the literature, where a group has access to political decision-makers, is
successfully able to influence policy through lobbying, but needs to pursue liti-
gation at the same time either to defend their gains from opposition activity in
the courts or when a policy vacuum exists and legal mobilization prevents the
introduction of policies adverse to a particular movements interests (Epstein
1985). Further, opportunity theories, particularly those that attempt to
measure the receptivity of policy-makers, cannot account for situations
where collective actors will turn to the courts, even when they are confident
that the courts are inhospitable to their arguments. Organizations may go to
the courts even when they are relatively confident that they will lose the case;
a loss can serve to highlight a legislative gap, gain media attention or mobilize
an organizations own (potential) constituency.
A second issue with opportunity-focused explanations is that they tend to
ignore actor agency. While opportunities open the way for political and legal
action, the social movement literature has long argued that collective actors
also make opportunities (Gamson and Meyer 1996). While lavishing attention
on the impact of political and legal opportunities on the choice of strategy, scho-
lars of strategic litigation have spent relatively little effort systematically studying
the role that collective actors have played in reshaping the institutional structure
and legal procedures of a given polity (notable exceptions include Andersen
2005; Cichowski and Stone Sweet 2003).
Another difficulty with opportunity structure approaches is that they black-
box organizations: they either treat organizations as static, homogenous entities
and tend to push characteristics of the groups themselves or the social movement
organizational environment into the background of their analyses; or they are
single-organization case studies and hence treat the interest group as sui
generis. In sum, opportunity approaches tend to ignore the internal and social
movement dynamics of organizations which might exert an important influence
on the range of strategy options available to an organization.
L. Vanhala: The influence of identity politics 741
Resource threshold-based explanations
Explanations that incorporate resource mobilization (RM) approaches
somewhat remedy the neglect of internal dynamics of interest groups by oppor-
tunity approaches by positing that an interest groups strategy will be largely
determined by its available resources (McCarthy and Zald 1977; Kitschelt
1986). Scholars who incorporate RM factors into their hypotheses claim that
organizations must be able to successfully mobilize resources from the public
in order to be able to pursue collective action. The implication of this for the
choice between lobbying and strategic litigation is that the latter is assumed
to be far more costly and hence the resource threshold to pursue a litigation
strategy is generally considered to be much higher than that to pursue a lobbying
or protest strategy (Harlow and Rawlings 1992; Alter and Vargas 2000; Hilson
2002; Bouwen and McCown 2007).
There are, however, several problems with the application of RM theoretical
propositions in existing work on strategy choice. First, different types of litiga-
tion strategies can be employed, each with varying resource thresholds. Acting as
the litigant is undoubtedly expensive; submitting intervener briefs to influence
the courts reasoning is generally less costly and time-consuming. Further,
Harlow and Rawlings (1992) draw a distinction between proactive litigation
strategies versus reactive litigation strategies. Proactive litigation describes
those situations where groups will act as the litigant, seeking to take their
cause to the courts. Reactive litigation would include those situations where
groups which felt the law was discriminatory would undertake acts of civil dis-
obedience with the goal of being arrested and being brought before a judge who,
they hoped, would overturn their conviction in recognition of what they saw as
flawed legislation. Reactive litigation strategies turn issues of resource mobiliz-
ation and access to justice on their head: for example, the question of standing
becomes moot when an activist or organization is a defendant and is obligated to
appear in court either because they have flaunted what they perceived to be an
unjust law and been arrested or because they have had an injunction brought
against them to prevent protest activity.
Another criticism that can be lodged against resource-threshold explanations
is that these analyses might be missing the broader picture: the level and also
types of resources that an interest group possesses may be determined by
other preferences or values that precede the resource question. For example,
an unconventional group which has a preference for direct action from its incep-
tion may be less concerned with developing its financial resources because
protest as a strategy has a lower material resource threshold than lobbying or liti-
gation. While Bouwen and McCown argue that the resources which private
interests have at their disposal have an important impact on the access and liti-
gation strategies they can employ (Bouwen and McCown 2007: 425), the con-
verse may also be true: the strategy which an organization might like to use may
influence the level and types of resources that they aim to develop. In sum, the
relationship between resources, strategy and values is not unidirectional and to
742 Journal of European Public Policy
look only at the types of resources that an organization possesses to determine
the likelihood of their use of strategic litigation may be misleading.

Explanations transcending opportunity and resource mobilization


Most recent work has transcended the RM and POS/LOS divide and combined
elements of both into frameworks used to analyse the turn to a litigation strategy
by specific policy actors. These explanations provide more convincing accounts
of strategy choice but lack generalizability. An important example from the
European literature, referred to above, is Bouwen and McCowns (2007)
study of business interest groups in the EU. Their work considers variables rel-
evant to both the individual-level attributes of interest groups and the strategic
environment in which they operate to explain the choice between lobbying, liti-
gating or the decision to combine both types of strategies. However, the study is
limited in substantive focus: Bouwen and McCown argue that based on the
agreement in the literature that business interests are much better represented
in Brussels than other societal groups, the theoretical and empirical part of
this article studies the behaviour of business interest groups only (Bouwen
and McCown 2007: 424). By selecting from a population that is already
known to have relative success in terms of access and influence, their study
has built-in bias. While litigants have proved to be eager partners in the EU
setting when legal integration furthered their interests in the single market,
this logic has not necessarily held across other policy domains, especially
social policy where the EUs competence is more recent and more contested
(Conant 2002).

BEYOND OPPORTUNITY AND RESOURCES


Summing up the need to move beyond explanations based on opportunity
structure and resources, Solberg and Waltenburg, looking at the case of US
interest groups, argue that:
A groups assessment of where, and possibly whether, to act is not an easy cal-
culation based on the receptiveness of a venue and the available balance in the
bank account. Groups must attend to their members and their competition.
Explanations of group advocacy omitting such concerns are inherently flawed.
(Solberg and Waltenburg 2006: 558).
Similarly, Hilson argues that political opportunity and legal opportunity, in
other words, can only ever be part of the equation in explaining group strategies
(Hilson 2002: 251).
The relatively recent inclusion of interest group characteristics beyond just
resources in analyses of strategy choice has begun to remedy (in an ad-hoc
manner) this lacuna in the literature. Strategy choice has been explained by
the need of elites to please the rank-and-file membership in order to ensure
group survival and maintenance (Holyoke 2003; Hansford 2004; Solberg and
L. Vanhala: The influence of identity politics 743
Waltenburg 2006); by the breadth of a groups mandate and make-up of their
membership (Alter and Vargas 2000; Bouwen and McCown 2007); by internal,
largely inter-generational divisions over attitudes towards co-operation and con-
flict with state institutions (Morag-Levine 2003); by the impact of opposing
strategies from counter-interests in particular venues (Holyoke 2003); or by
the size of the population of interest groups within a policy arena (Solberg
and Waltenburg 2006).
In this paper, building on the momentum of recent work, I argue that the use
of concepts developed in the identity politics and the collective-framing pro-
cesses literature may be necessary to fully understand why and when some
groups are more likely to rely on a litigation strategy. An added benefit of
these approaches is that they can serve as a way of grouping many of the variables
recently included in the literature, overcoming the ad-hoc nature of these ana-
lyses: identity politics and framing concepts can be used to categorize relation-
ships within a group as well as dynamics between various policy actors in the
multi-organizational field. The aim of this paper is to lay the foundations for
the development of a more systematic, synthetic analytical framework for
understanding the turn to strategic litigation by collective actors.
Since the mid-1980s, sociologists have brought accounts of actor agency and
the production of meaning and identity within and across groups into analyses
of social movement character and action. Drawing on Goffmans (1974) ideas
to analyse how actors negotiate meaning, Benford and Snow define framing as:
An active, processual phenomenon that implies agency and contention at the
level of reality construction. It is active in the sense that something is being
done, and processual in the sense of a dynamic, evolving process. It entails
agency in the sense that what is evolving is the work of social movement
organizations or movement activists. And it is contentious in the sense that
it involves the generation of interpretive frames that not only differ from
existing ones but that may also challenge them. The resultant products of
this framing activity are referred to as collective action frames.
(Benford and Snow 2000: 614)
A groups collective action frames and the way it creates meaning and purpose
define, and in turn are defined by, its collective identity. The framing processes
will permeate all aspects of the organization: its membership, its relationships
with other actors, its goals and its strategies in achieving those goals. The inter-
pretive frames continuously being constructed and redefined within an organiz-
ation may dictate courses of action or tactics that are considered more
appropriate than others (March and Olsen 1998): a groups identity and the
way in which its members ascribe meaning to events or relationships may
circumscribe the use of certain strategies. Groups which are counter-cultural
define themselves and develop meaning frames through confrontation with
opponents and part of this identity may be a complete rejection of the funda-
mental norms that structure normal political or legal interactions (Kriesi 1995;
Hilson 2002). Strategy choice for these groups is constrained by the meaning
744 Journal of European Public Policy
frames of the group: Hilson (2002) suggests that organizations with counter-cul-
tural ideas or values are unlikely to use either lobbying or litigation as a strategy
because participating within these policy venues may be considered inappropri-
ate according to their opposition to state structures and the norms underpinning
them. However, as discussed above, there are a variety of types of litigation strat-
egies and not all of them are necessarily defined by the same logic of usage.
Counter-cultural organizations may perceive usage of a reactive litigation strategy
against an injunction as a part of their protest activity: again, the importance of
the type of litigation strategy matters. Sub-cultural movement organizations are
inward-looking and are primarily directed at developing and reproducing collec-
tive identities through within-group interaction (Kriesi 1995). The logical exten-
sion of this is that they will likely not pursue externally oriented strategies such as
litigation or, if they do, it is likely with the purpose of mobilizing their constitu-
ency and hence policy victory is of secondary importance. Instrumental organiz-
ations are focused on achieving substantive goals and are likely to favour
whichever strategy will allow them to most effectively and efficiently achieve
their policy goals (Kriesi 1995). Arguably, much literature on strategy choice
implicitly or explicitly focuses only on instrumental organizations.1
Combining an understanding of collective action frames with a nuanced
understanding of the different purposes and types of litigation strategies that
can be employed, we can begin to understand how organizational identity
and framing processes influence strategy choice in ways that previous analyses
ignored. The thrust of this discussion is not to argue that existing theoretical
explanations are less valid but that, in some cases, they are insufficient to
explain why some organizations turn to the courts whereas others do not. I
aim to demonstrate how identity politics frameworks and framing approaches
complement existing explanations in important ways by suggesting that
groups will be more likely to adopt a litigation strategy when their framing
processes define the membership primarily as rights-holders and the courts as
an appropriate venue within which to pursue policy.

POLICY CASE STUDIES: ANTI-DISCRIMINATION LAW


In this section I rely on case studies of the disability movement and the gay
rights movement to illustrate how movements collective action frames may
influence the choice to use litigation and the type of litigation strategy adopted.
The EU enhanced UK equality legislation when an anti-discrimination
provision was constitutionalized in Article 13 of the Amsterdam Treaty
which states:
Without prejudice to the other provisions of this Treaty and within the limits of
the powers conferred by it upon the Community, the Council, acting unani-
mously on a proposal from the Commission and after consulting the European
Parliament, may take appropriate action to combat discrimination based on sex,
racial or ethnic origin, religion or belief, disability, age or sexual orientation.
L. Vanhala: The influence of identity politics 745
The general principles of Article 13 are not themselves legally binding: to give
them legal effect, the Council of the European Union (Council of Ministers)
approved two directives proposing minimum standards of legal protection
against discrimination throughout the EU. The Race Discrimination Directive
established the principle of equal treatment between persons irrespective of
racial or ethnic origin and the Equal Treatment Framework Directive protects
individuals against discrimination based on religion, belief, disability, age or
sexual orientation.2
The equality policy domain provides an interesting case study; first, because it
complements recent work on business interests which have relatively high levels
of access to policy-makers; and, second, because in the field of non-discrimi-
nation collective actors play a disproportionately important role for their con-
stituency in consciousness-raising and in overcoming procedural and resource
hurdles associated with the use of all types of advocacy strategies. The case
studies serve mainly conceptual purposes and seek to illustrate the potential
power of the collective action frames approach to understanding strategy
choice. The case studies are based on secondary literature on the respective
movements; analyses of the organizational documents (e.g. litigation strategies,
public communications of participation in, and implications of, legal cases) of
key non-governmental and quasi non-governmental groups in the two sectors
(as identified by key stakeholders and in the literature) and more than 25
semi-structured interviews conducted in the UK and Brussels between February
2005 and December 2007 with high-level representatives of those organizations
(generally heads of policy/campaigns and chief executives) and with discrimi-
nation lawyers who have worked with those organizations.

The disability movements turn to litigation


Research documenting the adoption of strategic litigation by the gender equality
movement and the environmental movement in the 1980s and the early 1990s
in the UK has pointed to a Conservative government hostile to their goals as a
causal variable in the adoption of a legal strategy and particularly a European
legal strategy (e.g. Alter and Vargas 2000; Hilson 2002). However, the political
opportunity approach cannot explain the adoption of disability rights legislation
or the subsequent turn to litigation by the disability movement at the same
point in time: it was a Conservative government that proved receptive to
lobby and protest pressure to adopt progressive disability equality legislation.
Instead, the adoption of disability rights legislation in 1995, and the turn to
litigation, can be better understood if embedded within an analysis of the devel-
opment of collective action frames which united disabled persons into an
over-arching disability rights movement which culminated in the UK in the
mid-1990s. An important factor in the evolution of interpretive frames on dis-
ability-relevant issues was the emergence of organizations of (instead of for)
disabled people. Until the 1970s, disability organizations were run by non-
disabled, rehabilitation professionals, parents or carers and they operated under
746 Journal of European Public Policy
paternalistic approaches rooted in traditional, medically influenced explanations
of disability (Banks 1999). The universe of disability organizations began to
change in the 1970s, influenced by the political and cultural climate. The
decades which followed witnessed the emergence and proliferation throughout
Britain of organizations controlled and run by disabled people. These included
groups which were overtly political from the start; for example, the Union of
the Physically Impaired Against Segregation (UPIAS) which emerged in 1974
as a direct response to the colonization of disability organizations and others
which began life as self-help groups but became involved in political activities
through necessity rather than design (Barnes 2002). These groups of disabled
persons provided a forum in which disabled activists and academics explored
and reconfigured the whole notion of disability around the social model of dis-
ability (Oliver 1983). The social model transformed the identity associated with
being disabled from a bio-medical identity focused on an individuals impair-
ment to a citizenship-based identity focused on the quest for equality within a
society that is structurally and culturally biased against disabled people. In
order to remedy these biases, members of society, particularly employers, have
a positive duty to make reasonable adjustments to accommodate disabled
persons. Instead of simply requiring conformity to the able-bodied norm, the
social model and subsequent domestic and European legislation which
adopts at least elements of the social model requires some adjustment of that
norm to afford genuine equality to disabled people. The social model spread
from the radical organizations to some traditional ones such as disability charities,
many of which have rebranded themselves and restructured their governance
processes in line with the rights-based model of disability to varying degrees.
When the identity associated with the notion of disability is prescribed in this
way, the expansion of rights (as opposed to charity or health or welfare policy)
becomes the most appropriate way of combating disability discrimination and,
by extension, litigation becomes one of the most appropriate forms of enforce-
ment. In sum, the movements framing processes circumscribe more or less
appropriate strategies and tactics, even before the question of opportunity or
resources is raised.
In the case of disability policy, the EU anti-discrimination provisions had rela-
tively little impact on the equality protections available to disabled Britons.
Instead, it was national legislation, the Disability Discrimination Act (DDA)
1995, which bestowed rights and obligations on disabled people across a
number of areas including employment, education and access to goods, facilities
and services. The DDA was particularly strengthened by the establishment in
2000 of the Disability Rights Commission (DRC) which had a mandate to
work towards the elimination of discrimination against disabled people.3 Like
the other equality commissions in the UK, the DRC was organizationally well
suited for the development of a litigation strategy (Alter and Vargas 2000). It
had a team of lawyers experienced in employment and disability law and
intake processes designed to identify systemic barriers to the full inclusion of dis-
abled persons in society and to filter potential legal cases for test case litigation.
L. Vanhala: The influence of identity politics 747
It is important to address the fact that the DRC is not a civil society organ-
ization, but a publicly funded body with a mandate to work towards the elim-
ination of discrimination against disabled people and promote equality of
opportunities. There is, however, a case to be made for treating the DRC as a
key movement policy actor in the realm of disability rights. First, studies on
the womens movement in the UK and the use of strategic litigation have
often implicitly focused on the Equal Opportunities Commission as the key
policy-influencing organization in the realm of gender equality during its exist-
ence. For comparisons sake, the DRC would be the most similar organization
in terms of mandate in the disability policy realm. Second, during its existence,
the DRC had considerable impact in areas of equality policy, often in ways that
went against government interests. Arguably, it behaved like a well-resourced
independent group advancing a disability rights agenda. Third, several intervie-
wees (from both inside and outside the DRC) pointed out that many key policy
entrepreneurs in disability-relevant organizations became Commissioners or
were employed in key positions within the DRC during its existence. In this
way, the organization corralled expertise and resources. Fourth, representatives
from several disability non-governmental organizations (NGOs) claimed that
the DRCs research and policy work allowed them to focus on other priorities
during its existence, while some grassroots activists and academics expressed
chagrin over their perceptions that the DRC diminished the influence of
their own organizations: both types of comments confirm the pooling of
policy influence by the DRC on disability rights issues. In sum, on both a
macro and a micro level the body was the key organizational actor advancing
a disability rights agenda during its existence.
The DRC developed a successful litigation strategy which has influenced the
way in which the courts approach the question of disability discrimination.
Significantly, in an early case, McNicol v. Balfour Beatty Rail Maintenance Ltd
(2002), the DRC acted as interveners and successfully encouraged the courts
to adopt a social model approach in their interpretation. In another important
test case backed by the DRC, Archibald v. Fife Council (2004), the House of
Lords stressed that the DDA is different to the Race Relations Act and the
Sex Discrimination Act and the legislation may require of employers a differ-
ence in treatment to attain equality of outcome. The House of Lords concluded
that the reasonable adjustments provisions are the mechanism for achieving this.
An important case, Coleman v. Attridge Law & Another (2006), is currently
awaiting the response to a series of questions referred by the UK Employment
Tribunal for a preliminary ruling to the European Court of Justice (ECJ)
under the Article 234 EC procedures. In this case, Miss Coleman is not disabled
but alleges that she experienced disability discrimination on the grounds of being
the carer of her disabled son. It was argued on behalf of Miss Coleman in October
2007 that discrimination by association with a disabled person (associative
discrimination) is covered by the European Equal Treatment Framework
Directive (which prohibits discrimination on the grounds of disability). In
addition to the case in question, it was submitted that the DDA, as amended
748 Journal of European Public Policy
by regulations which were brought in to ensure that the DDA fully implemented
the disability strand of the EU Directive, should also be construed in this way.
According to the Advocate Generals opinion in January 2008, such discrimi-
nation is prohibited by the Framework Directive. The decision of the ECJ will
follow in due course but if the decision is in favour of Coleman it would have
significant implications for the rights of carers and others who are associated
with disabled people across the EU, for the interpretation of domestic discrimi-
nation law, and for the influence of the EU on UK social policy.
In sum, the adoption of litigation as a strategy in the pursuit of equality has
been one of the most dramatic shifts in the field of disability policy. Jones and
Basser Marks argue that social movements aimed at the promotion of the rights
and equality of people with disabilities almost invariably argue for the adoption
of legal strategies (Jones and Basser Marks 1999: 2). Neither opportunity nor
resource-threshold variables can wholly account for the enthusiasm with which
the DRC specifically and the disability rights movement more generally have
adopted and supported the use of proactive litigation as a strategy in seeking
substantive equality. An explanation based on framing processes accounts for
both the timing of the push for anti-discrimination legislation in the UK and
the EU and the way in which the DRC embraced strategic litigation in both
the domestic and EU arena.

The LGBT movements divided approach to strategic litigation


While disability activists argued that disabled people were treated as invisible
by the state (Waddington 1999), the state actively stigmatized lesbians and gay
men (Clapham and Weiler 1993). What distinguishes gay citizens from the
members of other groups who have asserted their civil rights in recent
decades is that only they have been told that their freedom must be limited
to accord with the moral standards of the community (Kaplan 1997; Bell
2002). This has meant that gay rights organizations have faced additional
hurdles in their quest for equality: before advocating for legislative protections
against discrimination, they had to combat discrimination in the law, such as
the criminalization of same-sex sexual behaviour. The identity politics and dis-
sidence over meaning frames between gay rights organizations in the UK has
influenced the use of litigation and the types of litigation strategies relied on.
The case of lesbian and gay organizational strategy choice highlights some
difficulties with the political opportunity approach. Opportunity-based
approaches assume that the worst policy-influencing situation that an interest
group can face is closed political opportunity and a lack of receptivity it is
unable to account for a situation where a group can not only not gain access,
but may be politically and personally ostracized when it appears in the policy
realm. Analyses of identity politics within the movement combined with a
broadened understanding of the variety of types of litigation strategies
provide a more convincing explanation of the use of litigation by LGBT activists
than opportunity-based approaches alone.
L. Vanhala: The influence of identity politics 749
The gay and lesbian movement in the late 1960s and 1970s in the UK
espoused a radical notion of sexual politics advocating homosexual liberation
and was shaped by militant direct-action groups such as the Gay Liberation
Front who rejected integration into straight society (Lent 2003). This
counter-cultural identity was carried on with the founding of Outrage!, a
queer rights direct action group, in 1990. It is typically classified in the
social movement literature as an unconventional group (Hilson 2002). The
group describes itself as having pioneered a critical, sceptical attitude towards
the values, laws, and institutions of straight society. Equality is important but
is not enough, since equal rights alone inevitably means equality on straight
terms (OutRage! website 2005).
The movements identity and associated hegemonic collective action frames
were challenged with the emergence in the late 1980s of a moderate alternative:
Stonewall was founded by a small group of women and men who had been
active in the struggle against Section 28 of the Local Government Act, a contro-
versial 1988 amendment stating that a local authority shall not intentionally
promote homosexuality or publish material with the intention of promoting
homosexuality or promote the teaching in any maintained school of the
acceptability of homosexuality as a pretended family relationship.4 Stonewall
quickly evolved into a professional parliamentary, media and legal lobbying
organization (Jeffery-Poulter 1991). Stonewalls rights-based, instrumental
approach has been described as a break with the traditions of the gay liberation
movement . . . in favour of a civil rights and law reform approach that centralises
on human rights discourse (Berger 2004: 35). The adoption of rights-based
meaning frames by Stonewall and its constituency has been crucial in inserting
the notion of gay rights into the broader spectrum of human rights. Despite the
assumption in existing literature that counter-cultural groups, such as OutRage!,
will not use the courts, litigation as a strategy has been used by both groups,
though with varying degrees of success and even disagreement over what
success is.
A de facto division of labour emerged between the two key movement organ-
izations, despite competing visions of what the movement and equality legis-
lation should look like. An OutRage! spokesperson described his perception
of the role that each group played:

Stonewall is very polite compared to our organization. [Their] aim in life is to


talk to the movers and shakers whereas our aim in life is to make the movers
and shakers move and shake, make them aware of the fact that there is an
issue. And while they [political actors] may not want to talk to us because
it would be a reaction to our campaigns . . . they then talk to Stonewall.
(OutRage! spokesperson 2005)

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.

Biographical note: Lisa Vanhala is a doctoral candidate in the Department of


Politics and International Relations, Nuffield College, Oxford University, UK.

Address for correspondence: Lisa Vanhala, Nuffield College, New Road,


Oxford, OX1 1NF, UK. email: lisa.vanhala@nuffield.ox.ac.uk

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.