Ojämställda konstruktioner? En diskursanalys av diskrimineringslagens konstruktioner av kön, genus och sexualitet

Sammanfattning: The topic of this essay is the prohibition of discrimination on the basis of gender, sexual orientation and transgender identity or expression, as determined by the 2008 Discrimination Act (2008:567), preliminary work and practice. The Discrimination Act collects prohibitions of discrimination that previously were scattered across several acts. The purpose was to simplify the regulation and strengthen the protection against discrimination. To the five existing grounds of discrimination, gender, sexual orientation, ethnicity, religion or other belief and disability, two new were added: age and transgender identity or expression. The grounds of discrimination are the basis of the applicability of the Discrimination Act. The Act serves as a closed list and the scope of protection thus coincides with these groups. In this essay I investigate whom the act protects and whom it neglects. Who is considered to be worthy of protection in the sense of the Discrimination Act? Moreover, I study how the grounds of discrimination have been constructed. How are they defined and what demarcations do they suggest? The purpose is to make the norms and structures that the regulation rests upon and maintains visible. This is done through critical discourse analysis. Trough this method the researcher can read the implicit meanings of speech and silence. The essay rests on a theoretical framework that consists of Michel Foucault’s analysis of power, Judith Butler’s and Yvonne Hirdman’s theories on gender and Foucault’s, Gayle Rubin’s and Jeffrey Weeks’ analyses of sexuality. In this essay I study the 2008 Discrimination Act, its preliminary work and court cases. From these, one can read certain problematic discourses. The construction of the discrimination ground gender is based on a view of gender as simple and self-explanatory. Thus, the Discrimination Act uses a legal definition where gender only means to be a man or a woman. Against this background, the new discrimination ground transgender identity or expression appears to be something divergent. Its inclusive character clashes with the excluding legal definition of gender. Moreover, there is a distinct demarcation between the three protected sexual orientations homo-, bi- and heterosexuality, and other practices or identities which in the preliminary work are said to only be sexual behaviors that arise from the previous ones. The construction also excludes those that don’t define their sexual orientation, and those who live out their sexuality in other forms than monogamous relationships or the aspiration for such relationships. In conclusion, it may be questioned whether the Discrimination Act fulfills its purpose of counteracting discrimination and promoting equality.