Recognition and punishment: legislation and queer inclusion in Spain

Abstract

This article develops a historical analysis of LGBT-related legislation in Spain in order to establish the analytical basis for what it deems to be an ongoing transformation from punishment through recognition towards punishment as recognition. That is, given that access to rights depends on legal recognition from the state, this study analyses the role currently played by the law in the inclusion of the queer subject. In doing so, it demonstrates the impossibility of achieving true equality under neoliberalism, on the basis that access to rights is framed within a punitive, zero?sum game through which the achievement of rights for some is dependent on the Other being devoid of them. The analysis rests upon two foundational claims —firstly, that discourse is a productive manifestation of power that is itself part of daily life; and secondly, that legislation, as a type of hegemonic discourse, is therefore involved in the process of subjectification by producing the subjects and categories it purportedly represents.

Situating itself within critical queer International Relations theory, the study develops an unhappy queer reading through a methodology that combines Sara Ahmed’s (2010) work on queer unhappiness with the Discourse-Historical Approach (DHA) of critical discourse analysis as defined by Martin Reisigl (2017). Taking a historical outlook to read legislation —considering it within its sociopolitical and economic context, rather than in isolation— facilitates noting changes in dominant discourses. Through this combined methodology, tracing the changes in state definitions of the so-called normative and deviant subjects becomes feasible, consequently enabling the identification of the mechanisms through which inclusion takes place. Ahmed’s work, apart from providing a specific focus on the queer subject, makes it possible to take a critical outlook on what is otherwise presented as progress, to be able to discern the wider consequences of seemingly innocuous narratives of safety and the protection of rights.

The argument presented throughout the article is that homonationalism and homocapitalism are these mechanisms that currently operate in tandem to create seemingly innocuous means to be assimilated into normativity, being respectively premised on national pride and the provision of economic profit. These means, however, require a temporal (re)definition of the deviant subject in order to properly function, thus ensuring the continuation of existing structures of privilege. Hegemonic discourses frame the desire to be assimilated into normativity as the means to reach the so-called good life. Not only that, but by resorting to the concept of resilience, they also frame the capacity to achieve it as being based purely on personal merit, therefore hindering the achievement of any profound changes at the structural level.

Spain has been selected as the basis for the study for two key reasons. Firstly, it constitutes a highly representative case to exemplify these existing lines of critical work within queer International Relations theory. The 2023 Trans law and the discourses surrounding it, which serve as the main case study for the second half of the article, exemplify and operate as part of these homonationalist and homocapitalist narratives of inclusion. The bases of these modes of inclusion can be identified through a historical outlook on Spain’s LGBT-related legislation, from its creation specifically for the repression of the queer subject to the evolution towards legislation aimed at the provision of rights. Secondly, its self?proclaimed status as a leader in the defence of LGBT rights offers a vital point of departure for critical engagement with this notion of legislative progress. That is, once homonormative discourses have settled, it becomes possible to be critical of the means through which this inclusion takes place, opening the path for imagining new means of inclusion beyond those premised in the existing system.

The article is structured in three main sections. The first section covers the theoretical framework and methodology in depth, defining the three key concepts for the ensuing analysis. In terms of the theoretical framework, it takes the concepts of homonationalism and homocapitalism as defined by Jasbir Puar (2007) and Rahul Rao (2020) respectively. The concepts are understood as the means through which neoliberal inclusion is premised, looking as well at the geopolitical hierarchies that they are meant to perpetuate. Then, the definition of resilience given by Alison Howell (2015) is applied to the reading of queer inclusion as being based on an individualised perspective aimed at the prevention of far-reaching structural change. Regarding methodology, the article first defines Ahmed’s (2010) conceptualisation of the good life, and the specific way in which it is combined with Reisigl’s (2017) definition of the Discourse-Historical Approach. This combined methodology serves to develop an unhappy queer reading —particularly in terms of providing a critique that is grounded on claims towards emancipation rather than on an unattainable analytical neutrality.

The second section offers a historical overview of LGBT-related legislation in Spain. Starting with Francoism, it presents the conceptualisation of punishment through recognition by examining the legal definition of the category of the deviant subject and the inclusion of the queer subject within it. It also pays close attention to the establishment of biopolitical means of control of the population that were later to give rise to homocapitalist discourses, particularly through its framing of personhood as being dependent on productivity. Then, looking at the Democratic Transition period, it analyses the establishment of these bases for homonationalism instead, tracing the construction of the Other that emerged from Spain’s own self-proclaimed status as a democratic, modern state.

The third and last section takes these bases and demonstrates their embedment in current legislation to further explain how homonationalism, homocapitalism, and resilience are combined as a means for neoliberal inclusion. In particular, as mentioned above, the section focuses on analysing these discourses and their specific implications through an in?depth reading of the 2023 Trans law and the narratives surrounding it. It begins by looking at homonationalist discourses, exposing the ways in which the language of defending LGBT rights can be instrumentalised to simultaneously promote civilising discourses and anti-immigration narratives, both being based on a positive portrayal of repressive state apparatuses. This positive portrayal represents the change towards punishment as recognition, making protection become synonymous with the punishment of the Other. Regarding homocapitalism, it demonstrates that the neoliberal system of rights is purposedly fragile, making them conditional on the provision of economic profit. The article concludes by providing avenues for future research, encouraging further critique that aims to imagine the possibilities of inclusion beyond existing parameters and through the dismantling of structures of privilege.