Access to Political Rights in Switzerland: Critique of the Naturalisation Process as a Source of Exclusion

In this article, we analyse and discuss the legal criteria granting access to facilitated naturalisation in Switzerland. Among the possible legal criteria, marriage to a Swiss citizen as a criterion for obtaining citizenship is emblematic of the conservative political background in this country. It is also influenced by gendered stereotypes within the law itself and its application. We argue in favour of a critical approach to the law in order to avoid the erasure of categories of individuals who are relegated to society’s margins. In a healthy democracy and judicial system, the law ought to be designed so as to avoid reproducing exclusionary bias. In this regard, we also discuss why acceding to citizenship is a prerequisite for exercising one’s political rights and thus, achieving inclusion in Switzerland.


Véronique Boillet / Clémence Demay
In this article, we analyse and discuss the legal criteria granting access to facilitated naturalisation in Switzerland. Among the possible legal criteria, marriage to a Swiss citizen as a criterion for obtaining citizenship is emblematic of the conservative political background in this country. It is also influenced by gendered stereotypes within the law itself and its application. We argue in favour of a critical approach to the law in order to avoid the erasure of categories of individuals who are relegated to society's margins. In a healthy democracy and judicial system, the law ought to be designed so as to avoid reproducing exclusionary bias. In this regard, we also discuss why acceding to citizenship is a prerequisite for exercising one's political rights and thus, achieving inclusion in Switzerland.

I. Introduction
It is well established that while the law is a tool of emancipation, it is also a tool to maintain conservatism and even oppression. 1 The objective of this contribution is to propose a critical analysis of the conditions of access to Swiss citizenship. In particular, the goal is to identify the extent to which our legal system is likely to create marginalisation when it excludes individuals who refuse or who are simply unable to comply with the process of "assimilation" that the law requires of them. 2 While the categories of law appear to be merely a faithful reflection of empirically observable reality, they are in fact only the result of a decision by the legislator that has the power to attach legal consequences to states of fact. 3 The function of law is therefore never purely recognitive but always constitutive: law establishes what is acceptable or recommended at a time and within a defined society. 4 And it is this choice, as it aims to define the notion of citizenship, that is the subject of our criticism. More specifically, we will deal with the notion of citizenship as a "legally codified status of belonging [...]" 5 , in other words, in the case of Switzerland, with the constitutional and legal conditions of belonging to the federal electorate and of exercising political rights.
With respect to Swiss political rights, we demonstrate the importance of feminist criticism of law, as its tendency to standardise is achieved through successive movements, the concepts being articulated in such a way that new marginalised groups are created at each stage. Indeed, in this field, the law uses apparently universal concepts that are in reality always deduced from or modelled on a 1 marie-XaVier Catto et al., Questions d'épistémologie: les études sur le genre en terrain juridique, in: Hennette-Vauchez /Möschel/ Roman (eds.), Ce que le genre fait au droit, Paris 2013, p. 4; François ost, A quoi sert le droit?, Bruxelles 2016, p. 80 f., the author describes the different uses of law, which vary according to the actors involved. In this regard, the law can be an instrument applied by an authority, a tool for leading an emancipatory struggle for victims of injustice, but also a weapon in the hands of the powerful and those who use the weapon to strengthen their interests.
2 A process that ignores the diversity of individuals who are governed by the law, as well as the existence of a power imbalance within a category itself. This aspect has been theorised by Monique Wittig, in particular to refer to the rejection of the experience of lesbian women within the "woman" category. This tendency to "homogenise" the population and deny diversity is the subject of criticism in intersectional feminism. Cf. aleXanDre Jaunait / ChauVin séBastien, Représenter l'intersection. Les théories de l'intersectionnalité à l'épreuve des sciences sociales, Revue française de science politique 62/2012, p. 5 ff. heterosexual male frame of reference, with the consequence that subjects who deviate from this hegemonic norm are rendered invisible. 6 The interconnection of these different unifying notions thus pushes the marginalised individuals a little further at each step.
As a preliminary step, it is necessary to revisit certain elements of feminist criticism of the concept of democracy which already endorses an idea of gender roles, and to propose a critical approach that challenges the notion of abstract universalism - a position that is also present in theories of citizenship. In the light of these theoretical considerations, we will examine the criterion of nationality as an element of inclusion in the "people" as a member of the federal electorate 7 and the incidental effects, including the creation of a caste-like system in which different categories of the population are rendered invisible. 8

II. Questioning the Abstract Universalism of Democracy
Before demonstrating the homogenising aspect of the law in the area of political rights, we highlight certain elements of the feminist critique of democracy. 9 Indeed, as many authors have pointed out, the democratic framework is already underpinned by a gender logic 10 and the female category constitutes one of its "margins". The historical example of the exclusion of women from "universal" suffrage is, in this respect, emblematic and particularly useful for our critique regarding the exclusion of other categories of subjects. 11 6 miChèle l. of democracy, has repercussions on the participation and representation of women, even when they have similar political rights to men. 17 Furthermore, the entire democratic political culture is infused with male representations according to feminist researchers. The founding myths of the social contract underpinning the legitimacy of the political system are based on male narratives (William Tell, Rütli oath [ Rütlischwur] ), 18 instituting solidarity and fraternity which barely takes into account the interests of female subjects. 19 Moreover, the areas of political socialisation are also strongly influenced by male circles (student associations traditionally reserved for men, Masonic houses, armies, etc.). 20 Consequently, the gender-specific experience of the subjects and the power relationships that mark these experiences are not taken into account. These elements are, in fact, subsumed under the presumably all-encompassing experiences of male subjects. 21 This observation is synthesised by the concept of "abstract universalism" in the literature and 17 line Blattmann, Männerbund und Bundesstaat, in: Blattmann/ Meier (eds.), Männerbund und Bundesstaat, Zurich 1998, p. 21. See also marie-CéCile naVes, La démocratie féministe, Réinventer le pouvoir, Paris 2020, p. 266, who denounces the role of essentialising theories claiming a complementarity of quality and capacity between the two sexes, in the construction of such a separation of spaces; ruBio-marín (n. 11), p. 6 ff.
18 Blattmann (n. 17). In Switzerland the term "Confederation" is used. Its members are historically primarily male citizens who have joined together to protect the rest of the population from possible attacks. According to her, the notion of citizenship is constituted mainly in the practice of war. This is reflected in the place given to the army as an institution of socialization to citizenship in the Swiss system. While we accept that democracy is a political system in which power is derived - directly or indirectly - from the people, 12 we also note that these two notions have been shaped and influenced by gendered representations denounced by feminist political scientists. For example, in her work, British professor of political thought, Carole Pateman, has criticised the "sexual contract", which is the corollary of the idea of the democratic social pact concluded between equal and free men, and which has given substance to the definition of democracy. 13 According to her, the concept of a democratic regime composed of equal and free subjects aims above all at an alliance between "brothers", between men, whose status as free subjects is in contrast to the dependence of female subjects. 14 From a political theory standpoint, men are essentially the subjects and their freedom derives from the sexual division of labour that allows them to participate in public life, while women are viewed as political subjects through the prism of the family. 15 Historically, the gendered distribution of roles assigning women to private spaces and men to the public sphere has therefore long been considered irrelevant for thinking about democracy and the constitution of its political spaces. 16 However, the construction of the division between private and public spaces, which is at the heart of the concept 12 The concept of democracy itself is not unequivocal. There are many controversies and studies about the notion and the elements that allow for the defining of a political regime as such. In this contribution, we will limit ourselves to a legal approach to democracy (martina Caroni, Herausforderung Demokratie, RDS 2013, p. 11 ff.; yVo hangartner / anDreas kley, Die demokratischen Rechte in Bund und Kantonen der Schweizerischen Eidgenossenschaft, Zurich 2000, § 11), as well as to a gender critique of it. For a broader overview of different theories of democracy and their critiques, see in particular: aleXanDre geFen / sanDra laugier, Le pouvoir des liens faibles, Paris 2020 or Dominique Bourg, Inventer la démocratie du XXIe siècle, Paris 2017.
13 Carole Pateman, The Sexual Contract, Oxford 1988. She insists on the need to integrate a gender reading of political theory in order to build a just and inclusive political system: "[T]he story of political genesis needs to be told again from yet another perspective. The men who (are said to) make the original contract are white men, and their fraternal pact has three aspects; the social contract, the sexual contract and the slave contract […]", p. 221. Therefore, the demand for an increase in representation of women in politics and within the different spaces of power constitutes a means of resistance and struggle against this abstract universalism that de facto hinders equality. 30 Moreover, men's democratic culture and the de facto barriers it imposes on a whole section of the population have the effect of diminishing the depth and quality of the public debate, as well as of the political action that results from it. 31 Thus, as long as the power relations that frame social interaction and decision-making spaces are not redefined to take all stakeholders into account, their democratic legitimacy and efficiency will be impacted. 32 Indeed, the adopted norms will remain pre-formatted by the social experience of a very particular category of the population, unaware of its privileges and the relativity of its point of view. 33 We will see that the same applies to other forms of exclusion.

III. Nationality as a Criterion for Exclusion from Citizenship
If we focus on the Swiss legal order in more detail, we must recall that the democratic principle is both the legitimacy criterion of the Constitution and the primary value on which Swiss institutions are based. The notion of people in accordance with the Constitution excludes all persons who do not have Swiss nationality. This is a classic, 41 but questionable, approach shared by many legal systems, according to which only citizens would share a sufficiently strong sense of loyalty towards their State to participate in decision-making (Bürgerdemokratie). 42 From a conceptual point of view, access to nationality is based on the construction of an alterity relationship among the members of a population that is supposed to be homogeneous. 43 The term citizenship therefore implicitly contains an aspect of prioritisation and standardisation. One part of the population will have access to norms and participate in their development, while the other part of the population will be those to whom these norms are addressed. This situation is questionable in the light of the principle of democracy enshrined in the Federal Constitution. 44 Belonging to the category of "the people" also has another political interest that makes it a major issue and was theorised by the philosopher Hannah Arendt through the idea of the "right to rights". 45 According to Arendt, in order to benefit from the protection of the law and to participate in a legal system, it is necessary to be recognised as subjects under the law. Thus, a fundamental right that would be a prerequisite for all the others would be the "right to have rights", which implies that one is recognised as belonging to a given legal order and therefore a holder of the entire catalogue of other fundamental rights. Although the majority of fundamental rights are "people" 35 occupy the position of the supreme organ of the community and collectively represent a fundamental pillar of democracy. 36 Article 136 of the Federal Constitution defines the "people", in the sense of the federal electorate, as Swiss men and women aged 18 and over who have not been banned from voting for reasons of mental illness or mental weakness.
Citizenship is, by definition, the key to inclusion in a democracy, since it allows the exercise of political rights and thus active participation in political life and in the development of law. 37 When citizens exercise their political rights, they are making use of a fundamental right expressly enshrined in the Federal Constitution which allows them not only to elect and vote, but also to be elected whether to the Federal Parliament, the Federal Council, or to a position as a judge at the federal level. As auer, malinVerni and hottelier point out, "the definition of the electorate is the first stone of the democratic institutional edifice". 38 However, as with the concept of democracy, the concepts of people and of citizenship have a "homogenising" tendency and are constructed on a logic of otherness. the right of soil, jus soli): 52 the granting of political rights is limited to Swiss nationals and Swiss nationality is acquired in the first place through the establishment of lineage (art. 1 SCA). 53 Only the naturalisation procedure is likely to enable foreign nationals to acquire Swiss nationality. This procedure therefore plays a fundamental role from a democratic point of view. By defining the conditions under which naturalisation takes place, the Nationality Act not only establishes the conditions for acquiring nationality, but also indirectly defines the conditions for acquiring political rights, i.e. the conditions for obtaining "a ticket" to enter the Swiss democratic process. 54 We will see not only that the requirements defined by this law are characterised by their strong "homogenising" nature, but also that their application is influenced by a normative vision of the notion of marriage. 55 In this respect, it should be recalled that women's struggle for political rights overshadowed another issue that was already relevant to the question of nationality: the need for women to conserve their nationality in case of marriage to a foreigner. Indeed, as Helen Irving notes, even as political rights were finally being granted to women, the legislation of many States continued to make women's nationality dependent on that of their husbands. 56 In Switzerland, it was not until the revision of the Nationality Act on 1 January 1992 that Swiss women no longer lost their nationality - and therefore their political rights - as a result of marrying a foreigner. 57 The Nationality Act distinguishes between an ordinary naturalisation procedure (art. 9 ff. SCA) and a facilitated naturalisation procedure (art. 20 ff. SCA). As its name suggests, facilitated naturalisation aims to offer certain foreign nationals Swiss nationality under facilitated circumstances, and thus indirectly the granting of political rights in a facilitated manner. Yet, facilitated naturalisation essentially targets heterosexual married couples: the legislator considers that through the matrimonial ties that unite him or her to a Swiss citizen, the foreign applicant is presumed to have become more familiar with the 52 anne kristol / Janine DahinDen, Becoming a Citizen through Marriage: How Gender, Ethnicity and Class Shape the Nation, Citizenship Studies 2019, p. 8; koChenoV (n. 28), p. 136. The authors stress that this principle prevails in a majority of States. Nevertheless, the specific criteria for naturalisation then vary greatly from one State to another, which indicates that it is a matter of political choice that prevails when adopting one or another as legal criterion. nowadays recognised independently of nationality, 46 the fact remains that political rights in Switzerland - as well as freedom of establishment and protection against deportation 47 - are linked to Swiss nationality, which is thus a vector of integration and increased protection. As Brigitte Studer reminds us, citizenship is composed of several overlapping (but not necessarily inclusive) elements: citizenship is, first of all, a legal norm of public law on which nationality is based; it then ensures a social status with the rights that derive from it, such as integration into social protection; finally, it grants access to political rights and practices. 48 As long as some individuals have only marginal access to nationality, their protection and opportunities for participation are diminished, 49 despite the existence of other participation rights such as the right to petition or freedom of association. The latter do not allow them to influence political decision-making in the same way as other political rights available to nationals (art. 34 of the Federal Constitution), especially as they are not binding for the authorities. Thus, in order to defend their own interests, non-nationals are limited to using indirect means of participation, making them dependent on the goodwill of Swiss citizens who may or may not take their interests into account, a situation not unlike that of women who are forced to persuade men to represent them. 50 As with the inclusion of women, access to the legal status of citizenship is therefore a guarantee that the interests of this category of people will be better protected and taken into account. 51

IV. Homogenisation and Exclusion: The Example of Facilitated Naturalisation
In Switzerland, the notion of citizenship is strongly influenced by the right of blood or jus sanguinis (as opposed to regardless of their sexual orientation. Because there is no matrimonial relationship likely to presume familiarity with the Swiss way of life, single persons must meet the much stricter conditions of ordinary naturalisation. Finally, this is also sometimes the case for transgender people who may have to undergo complex legal procedures to access marriage based on their sexual orientation. 62 Indeed, while a transgender woman who is registered as male may marry a woman, she will have to change her civil status to female before she can marry a man.
In addition to these differences in treatment in the law, there are also differences in treatment in the application of the law. As anne laVanChy points out, marriage serves as a social institution mobilising moral values in the service of a formalising civil administration. When it concerns a binational couple, marriage is subject to an evaluation process on the basis of gendered and racialised criteria. 63 Under the guise of objective enforcement of the law, civil registrars rely on their personal feelings to identify fraudulent couples. 64 Binational couples then become suspicious as soon as they deviate from the norm 65 and do not conform to the "ideology of romantic love". 66 At a later stage, such a process is repeated before the administrative authorities. In their field research, Anne Kris tol and Janine Dahinden demonstrate that the requirements enshrined in the Nationality Act are applied by the administrative authorities according to a normative vision of the conjugal relationship and on the basis of a "hierarchy of merit" to obtain Swiss nationality based on stereotypes linked in particular to gender. 67 In judging the legitimacy of marriage, factors such as age difference, the presence of children, or sexual fidelity are taken into account. 68 In addition, there is the requirement that the bi-national marriage must endure over time, otherwise there is a "presumption of fraudulent acquisition of facilitated naturalisation" 69 - and indirectly of citizenship.
way of life in Switzerland, which is why he or she benefits from the more favourable conditions for access to Swiss nationality and indirectly to political rights. 58 Same-sex couples who have entered into a registered partnership currently benefit from an intermediate, but nevertheless discriminatory situation: even if they enjoy the shorter deadlines applicable to heterosexual couples, they must go through the ordinary procedure, which is more burdensome, gives a wider margin of appreciation to the administration and its actors, and is not subject to the same judicial remedies (art. 83 letter b LTF 59 ) as the simplified one. 60 Knowing that the naturalisation procedure is a compulsory step for foreigners to obtain political rights and thus access to the right to vote and to be elected, the risk of creating social marginality becomes apparent very quickly: not only are foreign nationals excluded from these rights, but the procedure that allows them to acquire them is highly "heteronormalised": only married heterosexual foreign couples benefit from a facilitated procedure to the present day.
Ultimately, the requirements defined by the Nationality Act are discriminatory. As explained, the most obvious discrimination is directed at homosexual couples. In addition, there is also a difference in treatment for couples living together. These couples, whether heterosexual or homosexual, are indeed forced to legalise their relationship in order to be able to benefit from rights associated with the generalisation that matrimonial ties make the foreign applicant more familiar with the Swiss way of life. Yet we know for example that same sex couples sometimes decide to renounce the conclusion of a partnership not only because of the disadvantages that this union creates or codifies - for example in terms of adoptionbut also because of the categorising effect that it is likely to have, especially in the professional environment. 61 Differences in treatment also target single individuals, Nationality Act and is therefore just as heterogeneous and stereotypical. 75 It would, therefore, seem more appropriate to use the objective criterion of duration of presence. Foreign nationals who have resided in Switzerland for a certain period of time would then be eligible for political rights. 76

V. Conclusion
Feminist criticism has highlighted the limits of historical concepts of citizenship and democracy and has revealed some of the underlying stereotypes. Based on this observation, a more inclusive approach that considers the social reality has been proposed.
From this theoretical standpoint, we take the view that the definition of the notion of citizenship, within the meaning of the Swiss Constitution, does not withstand criticism: the requirement of nationality for access to political rights no longer seems appropriate and its relevance is called into question. Thus, the demand to open up the criteria for access to political rights and citizenship remains a political issue that is subject to resistance, despite the imperfections of the legal requirements highlighted in this contribution. 77 75 For example, the law treats a female foreign national married to a Swiss male national - in that case, the woman is entitled to a residence permit after five years (art. 42 para. 3 FNIA) - differently from a female foreign national who lives in a concubinage with a Swiss national - in that case, the woman has no right to a residence permit and must respect the more restrictive conditions of art. 34 FNIA, cf. Boillet (n. 28), N 28. In the end, it can therefore be observed that the nationality criterion, which at first sight seems gender neutral, is conservative, highly heteronormative, and based on stereotypes. And such stereotypes are likely to be reflected in the representativeness and diversity of political institutions.
One solution would, therefore, be to rethink the naturalisation process on the basis of the criticism mentioned above. In our view, however, this would not be sufficient in view of the democratic principle which implies that decisions must be taken by the people who are subject to them. 70 In order to favour a more inclusive approach,without, however, fundamentally questioning the very notion of a federal electorate 71 - the nationality requirement would therefore have to be waived. 72 In this regard, several proposals have been made. The most common is to include a certain type of foreign national in the electorate: holders of a residence permit. 73 Such an approach is open to criticism insofar as the Foreign Nationals and Integration Act 74 uses the same type of criteria as the