For LGBTI people, today is the best of times and the worst of times, depending upon where you live. What is the background to the regional differences (in terms of laws and social and religious attitudes)? What progress have we made in having our issues recognized in international human rights law?

OUT AT THE UN

Douglas Sanders
sanders_gwb @ yahoo.ca
Bangkok, Thailand
January 7, 2010

1. THE BEST OF TIMES AND THE WORST OF TIMES

Sixty years ago national, regional and international human rights agendas were just starting to take shape. In the West lesbian and gay people were cautiously forming their first modern activist groups. It was hard to predict the future of the new human rights discourse, and equally hard to understand whether it could or would recognize sexual and gender diversity. We were not alone at this puzzling juncture. Other issues, other groups, were also waiting in the wings, hoping to find a better place in the new post-war world.

Today LGBT people have secured important gains and, in some countries, broad legal recognition. Old laws criminalizing sex between males are gone in Europe, North America, Australasia and most of Latin America. Anti-discrimination laws covering ‘sexual orientation’ are the norm now in the countries of the UN’s ‘Western’ group, where substantial legal recognition of same-sex couples is now widespread. Initially a registration model was followed for relationships, avoiding any symbolically important references to ‘marriage.’ But by the beginning of 2010, ‘marriage’ had been opened up to same-sex couples in Belgium, Canada, the Netherlands, Norway, South Africa, Spain, Sweden, a handful of states in the United States, and in Mexico City. Progress on lesbian and gay issues opened the way for some recognition of transsexuals and transgendered individuals. New norms recognize the post-operative sex of transsexuals and allow marriage in that sex. At the United Nations statements supporting LGBT equality rights were endorsed by 31 states in 2005, by 54 states in 2006 and 66 states in 2008. LGBT NGOs are now active at the UN, and have important allies in the major international human rights NGOs. All of these changes are new.

But LGBT visibility and legal gains have provoked a serious backlash. Homophobic tirades were repeated in the 1990s and 2000s, by a string of leaders, notably Mahathir Mohammed in Malaysia and Robert Mugabe in Zimbabwe. The mayor of Moscow calls gays and lesbians “satanic” and prohibits any public demonstrations. ‘Gay bashing’ has become more common in the West, or, at least, more visible. Executions have been occurring for alleged homosexual acts in Iran, sometimes of minors or for acts committed while under age. Accounts have emerged of the private vigilante torture and killing of alleged homosexuals in Iraq. Lesbians have been gang raped in parts of Africa to ‘cure’ them. Honor killings have occurred of gay or lesbian sons or daughters. Draconian new legislation has been proposed in Uganda that would make it an offence not to turn in a person who you know is homosexual and applying the death penalty for HIV positive homosexuals who have sexual relations. Expensive referenda campaigns have been mounted in US states to bar same-sex marriage or to repeal new marriage laws. Virtually all have succeeded. Same-sex marriage was repealed by popular vote in California and Maine. Evangelical Christians have blocked reforms in parts of the US, Africa and Asia. And while 66 states at the UN may support equality rights, an alliance of Muslim and African states blocked the one substantive resolution that has been introduced to date. Supportive states are only able to make “statements,” not back resolutions. The 2008 statement in the General Assembly was followed by a counter statement, endorsed by 57 countries. 69 countries abstained.

Everywhere, LGBT people remain largely invisible. When we say we now have ‘out’ people as mayors of major cities, members of legislatures, cabinet ministers and even, in 2009, one prime minister, we are reminded that we do not call Angela Merkel an ‘out’ woman or Barrack Obama an ‘out’ African American. Invisibility remains the norm, imposed by society, not freely chosen. Being ‘out’ remains remarkable and rare, not just for public figures but for most people in everyday life. Most LGBT people are not ‘out’ to their parents or on the job. The new public controversies over sexual and gender diversity actually bring new pressure on individuals who, in the past, were able to ‘live under the radar.’ Homophobia is now more open, sometimes said to be the last acceptable prejudice. It is politically useful in many countries. It stifles debate, rallies support and gains votes. Racism, sexism and anti-communism have each played this useful role in the past. Homophobia, in a sense, is the ‘new kid on the block’, available because of the new visibility of homosexuality as a public issue.

It is the best of times for many and the worst of times for many others.

2. THE LONG ROAD TO THE PRESENT

Evolutionary biologists would probably explain an anti-homosexual prejudice as the result of a strong bias towards procreation. In hunter-gatherer, herding, agricultural and cottage industry economies, children are part of the family economic unit. They contribute labor from their early years, gradually take over the family’s economic activity, and support parents in old age. In much of the world today, adult children are still under a strong obligation to give money to support their parents. In those parts of the world polls indicate a strong intolerance of homosexuality.

HOMOEROTIC TRADITIONS

Yet we have various historical accounts of the celebration of same-sex love in differing traditions. Most famous in the west is the celebration of homoeroticism in classical literature and in explicit depictions on some of the beautiful Greek ceramic vases. Socrates, that wonderful maverick, was accused of ‘corrupting youth,’ giving us the homoerotic expression ‘Socratic love’. The poetess Sappho gave us the word lesbian, from her home on Lesbos. Outside the west, we know most about the homoerotic traditions in China and Japan. Those countries have long literate traditions, and earlier views and practices were recorded. In many other societies we have homoerotic or transgender historical fragments, suggestive of some visibility and acceptance, but we lack enough information to make much sense of them. In other societies historians have not found equivalent historical material, or conflicting indicators. Homoerotic practices may survive into the present in the context of particular localized subcultures or particular practices, such as with the transvestite spirit mediums of Southeast Asia.

These various homoerotic traditions are a counterpoint to the economically driven historical norm of reproductive heterosexual family life. In general, the homoerotic traditions we know of were elite, age-stratified, gendered and non-exclusive. To elaborate:

(1) We know of such homoerotic practices among elites. Of course, most of the historical record is about elites. We have accounts of homosexuality in court life, by entertainers, by elite soldiers.
(2) The historical accounts are mainly about male homoerotic love, but not exclusively.
(3) Most accounts are age-stratified. The object of love is a young male.
(4) Most accounts are of gendered relationships, in which one male is seen as feminine or passive, or one female is masculine and assertive.
(5) The erotic relationships are not the exclusive sexual relationships of the dominant partners. The king or the nobleman typically continues a heterosexual relationship with a wife or wives. The younger partner may go on to heterosexual marriage.
(6) Our information tells us that the toleration or celebration of these practices has occurred in particular periods. Those periods come to an end. Such a period ended in Korea with the rise of Neo-Confucianism in the 14th century. New Western influences in the late 19th century ended such periods in China and Japan. Of course, homosexual activity did not end, for it occurs in all societies. But the public awareness, acceptance or celebration of it ended.

MODERN PATTERNS

The current focus on the issue of same-sex marriage by gay and lesbian activists in the West clearly indicates a much different modern paradigm. The modern image is of a relatively egalitarian couple, similar in age, not necessarily gendered in self-presentation, probably in an exclusive relationship, and often open to raising children in a nuclear family setting. History provides us with no similar general model in any cultural tradition. The modern nuclear heterosexual family is also historically new.

In modern economies individuals are economically independent of parents, kin and village. It is possible for individuals to live exclusively homosexual lives. Parents are no longer dependent upon children for support in old age. Children are no longer an economic asset to the family. They are optional and expensive.

In these new situations, homosexual individuals and couples become increasingly self-confident and seek recognition and acceptance by friends, employers, organized religion and society as a whole. These individuals may practice what is often called “identity politics”, that is, they identify as members of a minority and seek recognition and rights as a distinct grouping within the larger society. Others frame their goals differently, seeking bodily autonomy, reproductive rights, and free individual erotic agency. These are seen as human rights goals for everyone, no matter how individuals might personally identify (a universalizing rights analysis).

CRIMINAL LAWS

Anti-homosexual criminal laws, in this overview, are clearly a remnant of the past. But such laws are far from uniform even in Western history. They are religious in origin, tracing back to Jewish texts that were adopted by Christianity and Islam. No clear explicit parallel traditions developed in Hinduism, Buddhism or Confucianism. In the 16th century in Europe, as a result of the Protestant Reformation, those prohibitions moved from ecclesiastical law and church courts into regular state-run criminal law systems. Beginning early in the 19th century, half of Christian Europe ended any prohibition by adopting the Napoleonic penal code. Britain, however, held onto its “buggery” law. Starting in the late 19th century, Britain gave its colonies newly drafted criminal codes that prohibited “carnal intercourse against the order of nature”. Because of the extent of British influence and British Imperial control, by the early 20th century half the world had a prohibition. And, of course, half did not. Britain, yes. France, no. India, yes. China, no. The new modern scientific criminal law for revolutionary Russia in 1922 dropped any prohibition. Stalin reimposed one in 1933.

MEDICALIZATION

As religious devotion waned in the West in Victorian times, the religious basis for anti-homosexual attitudes and laws declined. Medicine had been gaining a new scientific status. Germ theory, for example, developed in the 1860s and 1870s. A new body of scientific work emerged on sexual variation, based on case studies. It drew on no earlier theories of sexual and gender variation. It was diverse in its approaches, with Havelock Ellis supporting sexual variation as normal, and Magnus Hirschfeld launching a gay rights movement. But the single most important text was Psychopathia Sexualis, written by Richard von Krafft-Ebing, first published in German in 1886. An English translation appeared in 1892. It became the “standard reference tool” for psychiatrists in Europe and the United States. It supported a pathological understanding of sexual variation.

Though the new medical science was not unified, homophobia assumed a particular normalcy in Western thinking, supported by popular medical beliefs. This occurred in a period of immense intellectual and social change. It was the era of Darwin, Marx and Freud. It was a period of economic globalization comparable to the present day, with dramatic new levels in the movement of people, commodities and capital. The period saw the last great surge of formal colonial expansion. The West took control of major parts of Africa, Asia and Oceania. Russia took control in the Caucuses, Central Asia and Siberia. The independent states of Japan and Siam westernized their legal systems and built European-style palaces to assert their modernity and justify continuing autonomy. The Eiffel Tower and colonial railways displayed new Western engineering skills. Anthropology developed in the service of empire. New legal codes were part of this modernization. The focus for anti-homosexual views was medical or psychological, no longer religious. Emerging in a period of Western imperial expansion, the new ideas spread beyond the West, though their impact abroad was not the same as at home. Homoerotic traditions in China and Japan retreated from public view. Siam told its people to start wearing gendered clothing, gendered hair styles, and using gendered names.

3. POST-WAR REFORMS

In the scientific ethos of the years immediately after World War II, a basic rethinking of sexual variation began. There seem to be three rather distinct and separate strands, featuring biologists, lawyers and psychologists. It is important to note that none of the initiators or key figures were known to be homosexual themselves. All were Western, which, in a sense, was appropriate for they were challenging the Western sexological tradition linked to Krafft-Ebing and his followers, as well as the surviving half of the anti-homosexual Western Christian-based legal tradition. LGBT organizations played no apparent role. Indeed LGBT organizations barely existed in the period in which the key figures worked.

First, Dr. Alfred Kinsey, a biologist, did a value free survey of what people actually did with each other and alone. His survey on the sexual activity of males, published in 1948, was a sensation, seen popularly as shocking, scandalous, pornographic. 200,000 copies sold in the first two months. Kinsey had no interest in any individual’s ‘identity.’ He counted orgasms and the kind of stimulus that produced each one. A seven-point scale charted the gradations from exclusive homosexuality through to exclusive heterosexuality. This challenged the idea that any one point on the scale was ‘normal.’ Sexual variation was a fact of life. A simple binary separating the categories of homosexuals and heterosexuals was a fiction. This was all so radical that Kinsey’s conclusions have never been absorbed into popular thinking in the West. Kinsey is regularly misquoted as saying that 10% of men are homosexual. This demonstrates ongoing attempts to assert a binary in the face of Kinsey’s non-binary findings. Binarization is commonly attempted both by people who identify as heterosexual and those who identify as homosexual. It makes life simpler to view people as falling into two distinct camps.

Kinsey’s work was part of the general expansion of scientific studies in the period, most notably in the rapidly expanding post-war American universities. A similar study was conducted in the UK but its conclusions were suppressed. Later studies by biologists have shown that homosexual activity is common in animal species, again supporting the basic Kinsey conclusion that homosexual activity is so common that it cannot be considered ‘unnatural’.

Second, legal reformers supported decriminalization of male homosexual activity using arguments of privacy and secularism. The state should not be regulating private behavior solely on moral grounds. Harm to society must be shown to justify regulation or prohibition. The key documents were the Model Penal Code drafted by the American Law Institute in 1955 and the report of the government appointed Wolfenden Committee in the U.K. in 1957. These were very influential elite documents, each contributing to decriminalization.

Third, the studies of Dr Evelyn Hooker showed that psychological tests were unable to determine differences in adjustment between homosexuals and heterosexuals. The medical arguments were demolished. The long reign of Krafft-Ebing was over. Homosexuality was removed from the list of pathological conditions by medical associations in the United States and United Kingdom in 1973, by the World Health Organization (WHO) in 1983, and by medical associations in many countries, including China in 2001. Medical experts now generally assume that sexual orientation and gender identity are determined either genetically or physiologically. This suggests they are not ‘chosen’ and cannot be altered by treatment. The WHO declassification of homosexuality in 1983 is such an important indicator of changed views that the anniversary of the decision is often celebrated as the International Day against Homophobia (IDAHO).

These innovative developments created an agenda for slowly emerging LGBT NGOs. They sought decriminalization and little else.

Again, these changes are a counterpoint to other developments in the period. State repression of homosexuals increased in the immediate post war years throughout the West. Police in some places sent young officers in civilian clothes to gay cruising areas to entrap homosexuals. There were raids on gay bars and gay saunas. The Wolfenden committee was established in the UK because of public controversies over aggressive police enforcement of anti-homosexual laws and the trials of a few high-profile individuals. Increased police enforcement had triggered a backlash, in which even religious groupings objected to its excesses. Anti-communist campaigns often identified homosexuals as security risks, arguing they had weak personalities and were open to blackmail. The high stigma attached to homosexuality made blackmail a real possibility. We have essentially no data on violence against homosexuals in the period, for victims would not report incidents for fear of outing themselves. The closet door was more tightly shut than it had been in the more relaxed inter-war years.

One of the key societal strategies was to keep homosexuals invisible through the strict censorship of books and films. Laws in New York state censoring films and stage plays were a reaction to “the growing visibility of the gay world” in the years after World War I. The 1930 revised United States Production Code barred any depiction of homosexuality in American films. Until 1958 the United Kingdom banned any films or plays with homosexual themes. Until 1998 South Korea prohibited any depiction of homosexuality in film.

When Ann Landers began her advice column in 1955, newspaper editors told her not to talk about homosexuality. This censorship was very significant. Her personal advice musings became the West’s most widely syndicated column, appearing in more than 1,200 newspapers with 90 million daily readers. Much later the column became an important populariser of ideas of gay legitimacy and gay rights. Christine Jorgensen had ongoing celebrity status in print media in the U.S. after her pioneering sex change operation in 1951, but said she was barred from television. Gays and lesbians did appear in scandalous stories in the tabloid press. Serious fiction was rare, but a few books, such as The Well of Loneliness, broke the taboo. It was prosecuted. The early novels usually had tragic endings. In 1986 a new editor at the New York Times reversed policy. As a result, coverage of gay and AIDS stories became routine, and the word ‘gay’ could now be used.

4. TWO OPENINGS

There were two quite different openings in the post-war period that created political opportunities for LGBT activism. They involved second-wave feminism, and the HIV/AIDS pandemic.

FEMINISM

Lesbian women have an uneasy relationship with gay men. It is a paradox, of course, that women who are not sexually interested in men and men who are not sexually interested in women are supposed to be bosom allies. It is a further paradox that transsexuals, who most often seek heterosexual relationships in their chosen sex, are now included in the activist LGBT coalition. Intersexuals, truly a separate category, have also been drawn in. These disparate groupings share in common only the hostility or unease of society as a whole towards sex and gender diversity.

It was lesbian women who most strongly articulated the problems of this alliance, for the few organizations were typically dominated by men. But did the new lesbian organizations have other allies? Second wave feminism challenged many prejudices and assumptions, but, initially, almost everywhere, women’s organizations shunned lesbianism as an issue that could destroy the movement. Lesbians were a ‘lavender menace’ to feminist gains, as Betty Friedan, then head of the National Organization of Women in the US, famously remarked in 1969.

In South Korea the first public LG rights organization was started in 1993, but only lasted a month. The few women involved found the gay men too patriarchal to work with. Gay men immediately created their own separate organization. Ten months later a lesbian group was established. When it later attempted to join the mainstream national coalition of progressive women’s organization, it was rejected.

The isolation of lesbians from the modern feminist movement has been largely overcome. Some lesbian leaders saw their place much more in the women’s movement than in the homosexual rights movement, and persisted in seeking an alliance. It is telling that the first known statement at the UN urging recognition of homosexual rights was made by a woman, a junior minister in the Dutch government, at the Third World Conference on Women, in Nairobi, in 1985. The first major debate on homosexual rights in a UN forum was at the Fourth World Conference on Women, in Beijing, in 1995.

The Declaration of Montreal, the product of the large LGBTI rights conference held in 2006, calls for activists to

…seek more co-operation with the women’s movement, and stress our common ground. The commonality is our right to control our own bodies and to choose how to live our own lives. Our joint goal is to challenge the rigidity of the fixed roles allocated to women and men and the dominance of heterosexual male norms and interests. This joint goal is not something marginal, but is part of the core business of the LGBT human rights movement.

This ‘universalizing’ feminist approach continues, in parallel to other writings that focus on LGBT ‘identities.’ The high points in some international recognition of ideas of sexual autonomy or control over one’s body are found in the debates and the outcome documents of the Cairo World Conference on Population and Development and the Fourth World Conference on Women in Beijing. The stories about Cairo and Beijing are told and retold in feminist inspired accounts (just as the stories of Wolfenden, Dudgeon and Toonen are told and retold in other writings).

AIDS

The second opening in the period came with the spread of HIV/AIDS, beginning in the early 1980s. In contrast to the feminist opening, this focused on gay men. It was the greatest ‘outing’ in history.

It is hard now to remember that the early organizations usually did not have ‘out’ leaders. Even the pioneering Mattachine Society in San Francisco in the 1960s had leaders who did not speak as homosexuals. The decriminalization work in the 1950s and 1960s was led more by experts than by activists. All that changed with AIDS. No one now could overlook the fact that there were gay men all around. New visible out gay leaders emerged.

Initially activists feared that their limited progress in gaining respectability would be swept away as gay men were re-stigmatized, now as carriers of a fatal disease. Surprisingly, that did not really happen. This suggests that some significant shifts in public and elite opinion on issues of sexual diversity had already occurred in the West, without much public acknowledgement. Of course there were some tirades that AIDS was God’s punishment for sin. But, from the very early days, it was clear that the infection was not limited to gay men. Additionally, out gay men in the West organized as care-givers and treatment activists, refusing to be seen as guilty and passive victims.

Governments mounted special health programs, but had no way to deliver prevention and treatment services to gay men, who were essentially an unorganized segment of the population. Governments had long worked, in effect, to keep gay men disorganized and out of sight, but they now needed their help. Everywhere governments and other donors began funding autonomous gay-run HIV/AIDS organizations. This was the first significant infusion of money into any kind of LGBT organization, and it happened all around the world.

In the West small gay organizations already existed, but it was new organizations that were created for the AIDS work. In other parts of the world gay-run AIDS organizations were the first public gay organizations to be created, legitimated by the health concern and by their working relationships with government health ministries. In Asia today, with rare exceptions, only the gay-run AIDS organizations have offices and paid staff. These organizations often play the role of LGBTI advocacy groups. It was the AIDS Law project of the Lawyers Collective in New Delhi, funded from abroad, that mounted the successful challenge to the 1860 unnatural intercourse law, a major activist victory in 2009. That year also saw an Asian regional male sexual health organization, with funding from UNAIDS, sponsor the formation of the first Asia Pacific Transgender Network.

5. HUMAN RIGHTS

The overarching framework for LGBTI activism has become ‘human rights’. Human rights, as we now understand them, are a product of the post-war years. The UN human rights instruments say little about sex. The Universal Declaration and the International Covenant on Civil and Political Rights both recognize the right of “men and women” to marry and found a family. Of course these “men and women” are to marry across the sexual divide. No other provision in the major UN human rights instruments is similarly gendered, leaving open the possibility of recognizing lesbian, gay, bisexual and transgender equality rights in the interpretation of other general provisions (and perhaps even rights to sexual autonomy and sexual pleasure).

The Universal Declaration and the two 1966 covenants sketched out a broad picture. Each document needed further elaboration, as subsequent treaties and instruments make clear. A series of cases tested the universality of the new human rights instruments. The task of fleshing out national, regional, and international human rights systems remains incomplete. We will group developments into (1) judicial and quasi-judicial decisions, (2) fights in political bodies (the EU, world conferences and the UN), and (3) expert commentary.

One can note the absence, in this short list, of a category for treaties or other human rights instruments. Unfortunately, to date, no international or regional human rights treaty expressly prohibits discrimination on the basis of ‘sexual orientation’ or ‘gender identity’, though two EU structural treaties refer to ‘sexual orientation.’ In general, it remains up to judges, experts and politicians to fill in the blanks in human rights provisions. Do we have a space within “privacy” rights? Do we fit within ‘other status’ or ‘other grounds’ in equality provisions? Is sexual orientation discrimination a form of sex discrimination, bringing us within virtually all non-discrimination laws? Do we have a right to marry (a same-sex partner) and found a family (by adoption or other means)? Are we a ‘social group’ within refugee law? Does the ‘right to health’ speak to our particular needs and conditions? Do ‘mobility’ rights within the EU, which include the spouses of economically mobile Eurocitizens, cover their same-sex partners? Do we have a right to happiness and personal fulfillment?

What arguments will get us in the door and on the agenda, when we were not sent an invitation to the party? All the arguments listed above have been tried, and some have succeeded.

6. JUDICIAL AND QUASI-JUDICIAL DECISIONS

The importance of judicial and quasi-judicial decisions on issues of sexual and gender diversity is striking. Politicians and legislators are usually very slow to act, fearing questions about their own sexuality and expecting a backlash from conservative voters. We have seen this political inertia most clearly in the survival of anti-homosexual criminal laws. They continued ‘on the books’ in many countries even after authorities stopped enforcing them in any systematic way, through a kind of de facto repeal. George W. Bush, when Governor of Texas, defended the Texas sodomy law as a “symbolic gesture of traditional values.” The laws survived because politicians did not want to take risks, when homosexuals were not seen as a significant voting bloc, or a group that had civil society support. Decriminalization could occur when it was buried in a wholesale rewriting of criminal law (as in the adoption of the Napoleonic Code or the Model Penal Code). In the US it was Bill Clinton, clearly the ‘underdog’ in the presidential campaign in 1992, who first took the political risk of openly courting the ‘gay vote’ in his country. With politicians generally avoiding any initiatives, reform questions regularly fell to courts and judges.

The pioneering decisions are those under the European Convention on Human Rights, a treaty sponsored by the Council of Europe. Terry Davis, the Secretary General of the Council of Europe, issued a statement on May 17, 2009, on the occasion of the International Day against Homophobia:

“It is unacceptable that some people in positions of official or moral authority in Europe still behave as if the European Convention on Human Rights does not apply to homosexuals,” Davis said. “People who discriminate often invoke morality to justify their attitude. They are making a relevant point, but they are getting it wrong. It is not the homosexuals who are immoral. It is the homophobes.”

The lead decisions of the European Court of Human Rights have now been supported by certain decisions of the UN Human Rights Committee.

Here are the major decisions:

DECRIMINALIZATION

Any rationale for criminal prohibitions was fading away in the post WW II period. The only viable rationale for such laws was a desire to keep gay people in the closet, safely out of sight. The famous case of Dudgeon v UK, decided by the European Court of Human Rights in 1981, was the first decision, beyond the national level, that extended human rights to homosexuals. The decision quoted from the Wolfenden report. It was not radical, for the UK had decriminalized in England, Wales and Scotland, leaving Northern Island as the sole troublesome holdout. As well, few criminal prohibitions remained in other parts of Europe. Dudgeon was pushing on an open door. In retrospect, it is almost a joke that Dudgeon, an out gay rights activist, won his case on the basis of ‘privacy’ rights. That was the ground available in the European convention, which, at the time, did not have a general non-discrimination clause. The decision was repeated and expanded in later cases in the European system. A parallel decision by the UN Human Rights Committee occurred in 1994 in Toonen v Australia, under the provisions of the ICCPR. The UN Committee would have looked very weak if it had not followed the well-established European lead. Toonen was also pushing on an open door, for all the Australian states except Tasmania had decriminalized. The national government in Australia wanted to loose the case in order to bring pressure for reform on the one wayward state.

Criminalization is now regularly said to be a breach of established international human rights standards. Nevertheless, as of 2010, colonial-era criminal laws remain in place in most of the former British colonies in Africa, Asia, the Caribbean and the Pacific Islands. Prohibitions also exist in Central Asia and parts of the Middle East. Seven countries retain the death penalty as a possible punishment for homosexual acts.

PROTECTION FROM VIOLENCE

International refugee law protects individuals who have a well-founded fear of persecution on the basis of membership in a ‘social group.’ In 2008 the UN High Commission for Refugees issued a Guidance Note on Refugee Claims relating to Sexual Orientation and Gender Identity, confirming that homosexuals and transgendered individuals were members of ‘social groups’ and therefore within the scope of refugee law. Numerous decisions of national courts had already upheld this interpretation of international refugee norms.

EQUALITY/NON-DISCRIMINATION

‘Privacy rights’ under the European Convention were extended to bar state employment discrimination in the 1999 decisions in Smith and Lustig-Prean, on military service in the UK. These ‘privacy’ rulings, paradoxically, allowed homosexuals to be open about their sexual orientation without a fear of loosing their jobs. Arguably all forms of state discrimination on the basis of sexual orientation, and more recently gender identity as well, are covered by this expansive interpretation of privacy rights.

RECOGNITION OF RELATIONSHIPS

The modern recognition of same-sex relationships began in the Netherlands in 1979 with legislation recognizing successor tenancy rights. The major breakthrough was the Danish Registered Partnership Act of 1989, extending most of the rights and obligations of marriage to same-sex couples who chose to register. This legislation has been copied widely in Europe and North America. The year 1989 also saw the decision of the New York Court of Appeals in Braschi v. Stahl, upholding same-sex spousal survivor rights to a rent-controlled apartment. These developments at national levels made international rulings possible.

In 2002, in Joslin v. New Zealand, the UN Human Rights Committee rejected a claim to equal access to marriage, on the basis of the reference to “men and women” in Article 23(2) of the ICCPR. At the time only the Netherlands had opened marriage to same-sex couples (so the case was ahead of its time). In the 2003 decision in Karner v. Austria, the European Court of Human Rights recognized a same sex relationship for the purposes of successor tenancy rights. In 2003 the Human Rights Committee in Young v Australia, found that the denial of a spousal pension to a surviving same-sex partner violated equality rights. That ruling was confirmed in 2007 in X v. Colombia.

CHILDREN

In 1999 the European Court of Human Rights in Mouta v. Portugal found a breach of the European Convention on Human Rights (ECHR) when a court denied custody of a child to the father on the basis of his homosexuality. In 2008 the court in E.B. v. France ruled that France could not discriminate on the basis of sexual orientation in decisions on the adoption of children. The question of whether adoption could be restricted to married couples was not directly addressed, although the court noted that ten European states already allowed homosexual couples to adopt children as couples.

TRANSSEXUAL RIGHTS

In 1996 in P v. S and Cornwall County Council, the European Court of Justice held that discrimination on the basis of sex reassignment was discrimination on the basis of sex and, for that reason, contrary to EU law.

In July 2002, in the Goodwin case, the European Court of Human Rights rejected some of its earlier decisions and ordered the United Kingdom to change the information on Christine Goodwin’s birth certificate from male to female. The breach was not simply of the right of privacy, but also of the right to marry. The Court ruled that Christine Goodwin, a post-operative male to female transsexual, had the right to marry a man.

The 2003 ECHR decision in the van Kuck case held that German courts had violated privacy rights by interpreting a health insurance contract between a transsexual woman and a private insurance company as not covering the costs of gender reassignment. In 2004, in K.B. v National Health Service, the European Court of Justice supported equality for transsexuals as spouses in a pensions case. In 2007, in L v Lithuania, the Court held that the government health system had an obligation to provide sex reassignment surgery, seeing it as a legitimate medical procedure in proper cases.

7. POLITICAL BODIES – THE EUROPEAN UNION

Joke Swiebel describes a political opening for LG rights in the 1990s that came about as a result of an institutional reaction to outbreaks of racism in Europe. The concern was brought to a head by the electoral success of the right-wing anti-immigrant Freedom Party in Austria, which was an acute political embarrassment to European leaders. In response to these developments, European political leaders decided to bring ‘human rights’ within EU law.

Human rights were not part of the EU system. The EU was established as a trading bloc. It had evolved into a special kind of federal state. EU law only prohibited discrimination on the basis of sex (essentially for economic, labor market reasons). The decision to bring human rights into EU law came long after the 1949 European Convention on Human Rights. That treaty belonged to the Council of Europe, a separate institution from the EU.

This opening of the EU system to ‘human rights’ occurred in a period of significant institutional growth for the EU. As well, the influential 1994 Roth Report in the European Parliament called for reforms on sexual orientation issues, even placing on the table the issues of marriage and adoption. An agenda was in the air that could include ‘sexual orientation’ among other grounds of discrimination. It did not include ‘gender identity,’ for the breakthroughs in the P v S and Goodwin decisions were still in the future.

While the driving issue for bringing human rights within the EU system was racism, it was to be one of five grounds – sex (already in the EU treaty), race, sexual orientation, age, religion and handicap. The most controversial of these was sexual orientation. There were lobbyists in place (notably the new ILGA-Europe NGO, funded by the EU) and internal reformers (who themselves were organized, officially, from 1998, in the parliamentary Intergroup on Gay and Lesbian Rights, of which Joe Swiebel was a member). Together they succeeded in having ‘sexual orientation’ included in the new EU treaty, along with the other ‘new’ grounds. They succeeded, again, in having the new treaty provision implemented quickly by a directive that required all member states to prohibit discrimination in employment on the basis of sexual orientation. The directive, enacted in October, 2000, was

…the jewel in the crown of the LGBT movement’s work at EU level. It is the only piece of international legislation now in force in the world that prohibits sexual orientation discrimination.

It has had a ripple effect on subsequent EU issues such as mobility, the admission of new members and on the 2000 EU Charter of Fundamental Rights, which is made applicable to member states when applying community law by the Lisbon Treaty of 2009. In June 2008, the EU Fundamental Rights Agency published the first volume of its report Homophobia and Discrimination on Grounds of Sexual Orientation in EU Member States.

8. POLITICAL BODIES – THE UN WORLD CONFERENCES

UN world conferences are political bodies, designed to focus on particular areas of concern and forge new understandings and policies. They are inherently reformist in character, though, of course, being inter-governmental, they include states unsympathetic to change. The 1990s, a reformist decade almost everywhere, saw a surprising number of very high-profile world conferences – environment and development in Rio in 1992, human rights in Vienna in 1993, population and development in Cairo in 1994, the fourth world conference on women in Beijing in 1995, social development in Copenhagen in 1995, the UN General Assembly Special Session on HIV/AIDS in 2001, and racism in Durban in 2001.

This string of world conferences presented new opportunities for activists. As earlier noted, the first speaker to introduce LGBT issues in a UN forum was a Dutch junior minister in a speech to the third UN World Conference on Women in Nairobi in 1985, in a plea for lesbian rights. The first time that LG NGOs got accredited for any UN forum was at the 1993 Vienna human rights conference, followed quickly by accreditation at the women’s conference in Beijing in 1995. The world conferences had looser accreditation systems for NGOs than the UN charter bodies, to avoid excluding groups from developing countries.

1. The World Conference on Human Rights

Three LGBT NGOs were accredited at the UN human rights conference in Vienna in 1993. None had existing ‘consultative’ status at the UN. Six statements were made by lesbian and gay activists either in the plenary session or in the main committee. In addition they participated in the meetings of the NGO parallel conference. Five governments made positive references to lesbian and gay issues in their speeches to the plenary sessions of the conference: Australia, Austria, Canada, Germany and the Netherlands. Singapore was the only state to make a negative comment. In a statement pointedly called "The Real World of Human Rights" Singapore described most human rights as "still essentially contested concepts." The statement went on:

Singaporeans, and people in many other parts of the world do not agree, for instance, that pornography is an acceptable manifestation of free expression or that homosexual relationships is just a matter of lifestyle choice. Most of us will also maintain that the right to marry is confined to those of the opposite sex.

The draft final conference statement had an equality paragraph condemning discrimination on listed grounds. In the drafting committee Canada proposed adding "sexual orientation" to the list. In response the paragraph was quickly rewritten as a general, open-ended prohibition of discrimination, without a list. Sexual orientation was not to be named.

The Vienna Declaration and Programme of Action states that ‘all human rights are universal, indivisible and interdependent and interrelated…” All participant states agreed to this language. It is modified only by the statement that

The significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind…

2. The Fourth World Conference on Women

Eleven explicitly lesbian or lesbian and gay organizations were accredited to the conference. There was a ‘lesbian tent’ at the NGO forum and a lesbian march on September 5, 1995. Two Canadian women unfurled a banner “Lesbian Rights are Human Rights” from an observer’s balcony in the main conference hall. Security guards hastily intervened.

In preparatory meetings leading up to the Conference, several delegations, including South Africa, Canada, Israel and the EU proposed wording that referred to “sexual orientation.” One proposal addressed discrimination against women on multiple grounds, such as sex and race, sex and disability, sex and sexual orientation. The four references to “sexual orientation” in the draft Platform of Action were considered together in a drafting committee meeting that stretched into the early morning of the final day, Friday, September 15th, ending after 4 a.m. After an hour of debate on sexual orientation, the chair, Ms Patricia Licuanan of the Philippines, commented that this had been the first substantive discussion of the subject in any United Nations forum. She said it required much more discussion, but given the division, the references would be omitted. Thirty-three States indicated their support for the references. Twenty States indicated opposition. The diplomatic preference for consensus decision making prevailed. A fight on the floor during the closing plenary was avoided.

The Beijing Declaration and Platform for Action affirms women’s

…right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence. (Paragraph 96).

Five years after the Beijing conference, a special UN General Assembly session in June 2000, revisited women's equality issues. Again the debate was intense, and again there was no consensus on adding "sexual orientation" even in a sentence that was drafted as a factual comment:

The turning point came in the wee hours of Thursday morning, the first of two all-night negotiating sessions, when Western nations continued insisting that expanded homosexual rights be listed among the document's accomplishment. The section noted measures taken "by a growing number of countries…to prohibit discrimination on the basis of sexual orientation."
"We cannot accept that language," said a delegate from Senegal. A Syrian delegate agreed: "There's no way we can accept a document tonight with the phrase 'sexual orientation.'" Delegates from Nicaragua and Kuwait said they could not accept "sexual orientation," an undefined term, as a human right. … Then the blowup came. Western delegations are "holding the women of the world hostage to one term, 'sexual orientation,'" when their real needs are clean water and help in overcoming illiteracy, said the Pakistan delegate.

The International Service for Human Rights recorded the outcome:

The two most contentious issues were abortion and sexual orientation. A significant source of opposition came from Catholic and Islamic countries, including the Holy See, Nicaragua, Pakistan, Libya, Sudan, Iraq and Iran. Delegates from these countries blocked the use of the term “sexual orientation” from the final draft document and prevented it from being used even in a passage highlighting non-discrimination laws in various countries. In their closing statements, representatives of Norway, New Zealand, Canada and the European Union, stated their disappointment in the lack of language against discrimination based on sexual orientation and reaffirmed their commitment to anti-discrimination laws.

3. The UN General Assembly Special Assembly on HIV/AIDS

Various UN agencies took up concerns with AIDS, including the WHO, the UN Development Programme and the World Bank. UNAIDS was established as an inter-agency body. Later the Global Fund was launched, dealing with three diseases, malaria, tuberculosis and HIV/AIDS. These programs on AIDS inevitably drew LGBT/SOGI issues into UN activities.

In June 2001, the United Nations General Assembly held a Special Session on HIV/AIDS, oddly only called the UNGASS. Two questions arose. Would a speaker from the International Gay and Lesbian Human Rights Commission (IGLHRC), a US based NGO, be allowed to speak at a UN sponsored workshop preceding the Special Session? Secondly, would the final statement of the Special Session mention homosexuals or sexual orientation? The Iranian Ambassador feared that the session would turn into

…an opportunity for certain forces in the Western world to push the envelope in areas where there is cultural sensitivity, ideological sensitivity, ethical sensitivity.

Karen Kaplan from IGLHRC was included in the workshop by the Assembly President, then banned at the request of Egypt, Iran, Libya, Malaysia, Morocco, Pakistan, Saudi Arabia, Sudan and Syria. A motion to reinstate her was made by Canada, backed by the EU, Australia, New Zealand, Argentina, Norway, Chile, Iceland, and others. The US did not sponsor the motion, but voted in favor. On June 24, 2001, the issue of approving Kaplan was debated for over two hours, delaying the opening of the session.

Islamic states sought unsuccessfully on Monday to block a U.S.-based gay rights group from participating in a panel, delaying for hours a major U.N. General Assembly session on AIDS. The nations, from Malaysia to Syria, many represented by the Organization of Islamic Conference, tried to deny the assembly a quorum after it was clear they would lose a vote. But Assembly President Harri Holkeri of Finland refused to rule that a threatened walkout meant there was no quorum and said delegates could not speak in the assembly and then say they were not there. “We have had the presence of the majority of members here in the plenary,” he said…. The Islamic nations were backed by Cuba, China, Russia and Belarus as well as Nigeria, Tanzania, Burkina Faso, Cameroon, Congo, Kenya, Mali, Senegal, Haiti and El Salvador.

In the end, Karen Kaplan spoke at the workshop.

A Catholic-Muslim-Evangelical alliance was starting to become important.

Lamani [a Moroccan diplomat representing the Organization of the Islamic Conference] said he was first approached by U.S. Christian non-governmental organizations, or NGOs, at the special session of the U.N. General Assembly on AIDS in New York in June 2001. Liberal Western activists and governments, he said, had offended the religious and cultural sensitivities of Islamic countries by proposing that a final conference declaration include explicit references to the need to protect prostitutes, intravenous drug users and “men who have sex with men” from contracting AIDS. “It was totally unacceptable for us,” Lamani said. “The Vatican and so many NGOs came to us saying this is exactly the same position we are defending.”

The final document approved by the Special Session made no mention of homosexuals, or the phrase “men who have sex with men,” a phrase commonly used in HIV/AIDS prevention work.

A last-minute compromise on the declaration came after Western nations reluctantly agreed to drop language specifically naming groups vulnerable to the disease – including homosexuals and prostitutes – because it was offensive to some Muslim nations. Instead of mentioning “men who have sex with men,” the new language refers to those who are at risk due to “sexual practice.” Prostitutes are referred to as those vulnerable to infection due to “livelihood,” and prisoners as those made vulnerable through “institutional location.”

One Western diplomat, however, said the compromise text represented a victory for the Western camp. “The language of the declaration is not perfect because it does not contain any reference to sexual orientation,” the diplomat stressed. “But the reference to homosexuals was a cut-off point for the Muslim group of countries.” Europe was left in isolation after coalitions of Latin American and African countries as well as the United States failed to back its position, the diplomat said. But the Western camp was successful in imposing a paragraph on “cultural obstacles” relating to education, prevention and treatment of AIDS, he said, noting that the Islamic group had been persuaded to go along with it. Moreover, the text recognizes “women’s rights over their sexuality.” “It’s a great victory for the European Union and a defeat for Egypt and Iran,” said the diplomat, noting that “on a scale of one to three, we notched up two and a half.”

9 POLITICAL BODIES – THE UNITED NATIONS

In sharp contrast to the EU, the UN had a human rights mandate from its creation in 1945. While Joke Swiebel has described the political context for the inclusion of ‘sexual orientation’ rights in the EU in the 1990s, no similar political opening has occurred at the United Nations. There was an early period of innovation on human rights with Charter language in 1945 and the successful drafting of the Universal Declaration of Human Rights in 1948. That was far too early for any inclusion of sexual and gender diversity issues. There was a major expansion of substantive provisions and procedures in the 1960s, notably the two major covenants of 1966 and the beginning of the ‘special procedures,’ but, again, this was too early. The UN began an incremental process of drafting specific new human rights treaties – women (1979), torture (1984), children (1989), migrant workers (1990), disappearances (2006), and people with disabilities (2006). These innovations were all too specific to provide opportunities to piggyback LGBT issues. The world conferences of the 1990s saw LG activists accredited to such events for the first time, starting in 1993, but this did not represent any kind of tentative endorsement of LGBT issues at the UN. Only one of those conferences had a real debate on sexual orientation issues (and only in the closed drafting committee). Some innovations occurred at the UN with the millennium development goals and the structural reforms that saw the replacement of the Commission on Human Rights with the Human Rights Council and a new ‘universal periodic review’ process. Only the last has been open to some airing of what we now call SOGI issues (for sexual orientation and gender identity).

None of the changes outlined in the preceding paragraph provided a political opening for SOGI issues that compared to the opening in the EU in the 1990s, when a wholly new provision on equality/non-discrimination was being drafted and activists were in place inside and outside the EU structures. At the UN SOGI issues have always arisen in the context of adding them to existing instruments or mandates or in stand-alone resolutions. They have never had the comfort of being simply in addition to other new provisions or just one item in broader reforms. Having the cover of a broader reform has often been crucial. France could decriminalize two centuries ago with the big new Napoleonic Code and never explain why homosexual acts were dropped. The comprehensive Model Penal Code could decriminalize, while avoiding any debate on the omission of a sodomy prohibition from the long document. Even Russian officials never explained at home why homosexual acts were made legal by their omission from the 1922 code. Specific fights – such as decriminalization in the UK in 1967, and adding ‘sexual orientation’ to existing anti-discrimination laws in Canada in the 1990s – had no such cover. They were very difficult stand-alone LG fights. There have been a long series of hard fought campaigns specifically around anti-discrimination laws and later around same sex marriage in US states. In the same way we have had a series of specific fights at the UN in which SOGI issues have been the sole issue. There has been no larger context of less controversial or more compelling issues.

There have been three major fights in the political bodies of the UN: (1) the mandate of independent experts, (2) the granting of ‘consultative status’ to LGBT NGOs, and (3) the ‘Brazilian resolution’ on LGBT rights, 2003-2005, and the follow-up statements.

1. The mandate of independent experts

In the 1960s the UN began what are referred to as the ‘special procedures’ a set of mechanisms that are not expressly set out in the UN Charter or in specific treaties. They include working groups on specific topics (such as arbitrary detention), and ‘special rapporteurs’, ‘special representatives’ and ‘independent experts’ appointed to report on individual countries or specific issues (such as human rights in North Korea, violence against women or human rights and counter-terrorism programs).

In the annual meeting of the Commission on Human Rights in 2001 certain delegates objected to the inclusion of cases of extrajudicial executions of sexual minorities in the report of Asma Jahangir, the Special Rapporteur on Extrajudicial, Summary, and Arbitrary Executions. Delegates argued that she had overstepped her mandate by addressing these crimes. The resolution renewing her mandate was stripped of language explicitly recognizing that sexual minorities were vulnerable to extrajudicial executions.

This incident came a couple of months before a letter was circulated by the Office of the High Commissioner for Human Rights indicating that six thematic special rapporteurs “were interested in receiving information on sexual minority issues falling within their respective mandates...” The six were the Special Rapporteur on extrajudicial executions, the Special Rapporteur on violence against women, the Special Rapporteur on torture, the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on freedom of expression, and the Special Representative of the Secretary-General on human rights defenders. The annual reports of these independent experts now contain information on sexual orientation issues, if relevant information comes to the rapporteur’s attention. As well the rapporteur may investigate specific cases. Individuals and NGOs can forward information directly to the special rapporteur.

Asma Jahangir, the Special Rapporteur on Extrajudicial, Summary, and Arbitrary Executions, continued to investigate cases involving sexual orientation and gender identity and send urgent appeals to particular governments about incidents. In 2002, in the Commission, Pakistan, on behalf of the Organization of the Islamic Conference (OIC), moved to delete two references to sexual orientation in the resolution extending her mandate. The motion was defeated, 28 to 15, with 9 abstentions. This reversed the hostile decision taken by the Commission in 2001. The OIC continued to fight the wording in subsequent years, loosing every time.

The resolution on extrajudicial, summary and arbitrary executions, renewed periodically, continues to be the only resolution ever adopted by the Commission on Human Rights to include an express reference to “sexual orientation.” Other special rapporteurs may report on sexual orientation and gender identity issues, but without express language in the resolutions that authorize their work.

2. The granting of ‘consultative status’

The present pattern of international human rights non-governmental organizations is relatively new. Amnesty International was founded in 1961. Human Rights Watch originated in 1978 as Helsinki Watch. In 1991 Amnesty International included individuals imprisoned on the basis of their sexual orientation in their category of ‘prisoners of conscience.’ Human Rights Watch also began including LG issues in its work. Amnesty International altered its mandate in August 2001, to deal with all human rights and all forms of discrimination. Now a number of key international human rights NGOs are active on SOGI issues, often with a dedicated staff person or persons. We can note Kate Sheill in Amnesty International, Scott Long and Boris Dittrich at Human Rights Watch, Sefano Fabeni in Global Rights, and figures in the International Service for Human Rights and in the International Commission of Jurists.

Many branches of Amnesty International have LGBT groups. AI members march in pride parades, call for anti-discrimination laws and support the recognition of same-sex relationships. Amnesty organized an international human rights conference in conjunction with the Gay Games in Amsterdam and again at the Gay Games in Sydney, Australia, in 2002. Their booklet “Sex, Love and Homophobia” was published in 2004, with a foreword by Archbishop Desmond Tutu of South Africa.

But LGBT/SOGI groups were largely barred from regular ‘consultative status’ at the UN until 2006. In that year, ILGA-Europe and two other organizations gained official access. This was only the second time a ‘political’ body within the UN structure made a decision we can identify as clearly supportive of LGBT rights (the first being the decision on the mandate of the special rapporteur on extrajudicial executions, noted above). The first LGBT group from the ‘global south’ to get accreditation was the national federation from Brazil, ABGLT, in July 2009, which had aggressive backing from its home government.

At the beginning of 2010 there were two individuals working full-time in Geneva on SOGI issues, John Fisher of the LGBT NGO ARC International, marking five years residency in Geneva, and Allison Jernow at the general human rights NGO, the International Commission of Jurists, newly appointed, but following an earlier dedicated staff person. What a small number! What a basic change!

3. The Brazilian resolution

In April 2003, with no advance warning, Brazil introduced a resolution, “Human Rights and Sexual Orientation”, in the Commission on Human Rights. In broad terms, it sought equal human rights for lesbians and gay men. The Brazilian representatives had not followed standard diplomatic practice in consulting with other government delegations in advance. Apparently they hoped that the resolution would slip through in the dying days of the Commission session. They wanted to act before the Cardoso administration came to an end in Brazil.

The resolution quickly gained 27 co-sponsors, including Australia, Canada and the countries of the European Union. Pakistan, on behalf of the Organization of the Islamic Conference, moved a “no action” motion. That procedural move was defeated, permitting consideration of the resolution itself. The United States delegation received instructions from Washington to abstain in any vote. Amnesty International issued a statement of support.
Amendments were proposed by Saudi Arabia, Pakistan, Egypt, Libya and Malaysia affecting all paragraphs of the draft resolution. Pakistan threatened to move a hundred more amendments. The goal was to block any vote. Time was running out. The resolution and amendments were put over for consideration to the next session in 2004. Pakistan, as coordinator of human rights and humanitarian issues for the Organization of the Islamic Conference, circulated a letter to other OIC missions in Geneva. It listed a set of arguments against the Brazilian resolution.
The concept of “sexual orientation” has never been defined in the UN. It has hardly ever figured in a UN document. Efforts to do so have always created enormous controversy and discord. … The list of sexual behaviour could always be expanded to include grossly errant behaviour like pedophilia. … In our perspective sexual orientation is not a human rights issue. Instead it is related to social values and cultural norms. Individual countries need to deal with this issue within the parameters of their own social and legal systems. … The concept of the traditional family constitutes the foundation of the human civilization.
The Holy See, which has observer status at the United Nations, also circulated its views on the Brazilian resolution.
This appears to be a preliminary step to claiming equal treatment regarding “marriage” for persons of the same sex, and regarding adoption for “unisexual households.” This attempt might be facilitated if a request were made to the Sub-Commission on Human Rights to undertake a study on discrimination on any grounds, including “sexual orientation.”
This short document dealt with marriage and adoption three times, clearly a central concern. Like the Pakistan Ambassador’s letter, it argued that “sexual orientation” has not been recognized in international human rights law (ignoring the 1992 Toonen decision).
Around fifty lesbian and gay activists traveled to Geneva for the 2004 session of the Commission to support the Brazilian resolution. No comparable lobbying effort had ever been made in the past and a number spoke in Commission sessions. The lobbyists were active and visible. They organized panel discussions, parallel to the Commission sessions. Argentina, Brazil, Canada, Germany and Sweden used their speeches in the ‘high-level’ session to state their concern with discrimination on the basis of sexual orientation. Brazil announced the launch of its “Brazil without Homophobia” educational campaign, but did not mention the resolution.
In contrast, opposition was silent or indirect.
Rather ominously the Pakistani delegate concluded his statement on behalf of the OIC by stressing the need for co-operation and understanding, and warning against “efforts to create new rights not sanctioned by existing treaty law” arguing that they would be “high fractious, divisive and counterproductive.” In implicit reference to the postponed resolution of Brazil on sexual orientation, the delegate asserted “attempts to develop norms which directly contradict fundamental value systems need to be avoided (…) No Islamic society would be able to accept any obligation which directly contradicts the basic tenets of our religion”.
Brazil did not reintroduce the motion in 2004. It issued a statement that more time was necessary for consultations with other states in hopes of building a consensus. The resolution was deferred to the next annual session.
In advance of the 2005 Commission session the International Commission of Jurists published a compilation of international human rights law references to sexual orientation and gender identity. It demonstrated, in over a hundred pages of detailed text, the extent to which sexual orientation issues had already been recognized in the special procedures, the treaty bodies and the refugee system. Around 60 GLBT representatives traveled to Geneva, organizing parallel panel sessions and lobbying governments.
The resolution was not introduced again in 2005, ending the Brazilian initiative. The official reason given was a lack of support in the Commission. The resolution would not pass. Both the German delegation and the NGO Human Rights Watch believed that there were probably enough votes to pass the resolution if the obstructive tactics of opposing states could be overcome. One organizer analyzed the position of various countries, concluding that approval or rejection lay with 7 states whose vote he could not predict. In contrast, a prominent opponent estimated a vote at the 2005 session of the Commission of 23 against the resolution, defeating 20 or 21 supporters, with about 11 abstentions. What created the possibility of majority support for the Brazilian resolution was a combination of votes from the West and from Latin America – plus the possibility of support from countries like South Africa, South Korea, Japan and the Philippines – and abstentions.
Given the difficulties of dealing with ‘sensitive’ issues within the Commission, why did Brazil make its move in 2003? And why did it back off in 2004 and 2005? It seems that the resolution had been largely the initiative of two individual Brazilian diplomats. It was consistent with positions taken by Brazil during the presidency of Fernando Henrique Cardoso, both at home and at the UN World Conference on Racism in Durban in 2001. Brazil had been a lead state in Durban in trying to get a reference to sexual orientation into the final conference statement.
President Luis Inacio Lula da Silva took office in January 2003. His government has been very active, internationally, but not always in ways conducive to the initiative on gay and lesbian rights. Brazil established itself as a leader of developing states at the UN and in the World Trade Organization. Brazil headed a grouping, dubbed at the time the ‘G-20’, which challenged the US and the EU on agricultural subsidies at the WTO ministerial meeting in Cancun, Mexico, changing the political dynamics within the trade organization. Lula actively sought investment from Arab states. In April 2005, he hosted an Arab-South America summit in Brazil, with representatives of thirty-four states. The story has circulated that Egypt directly asked Brazil to drop the resolution on sexual orientation as the price for their participation in the summit. For Brazil, economic and political considerations seemed in conflict with pursuing the equality initiative. Yet it proceeded with its “Brazil without Homophobia” domestic campaign. Particularly in his second term, Lula was a strong supporter of LGBT rights.
Western states expressed a reluctance to take over sponsorship of the resolution from Brazil. The German delegation, probably the strongest supporter of the Brazilian resolution, said European sponsorship would be the “kiss of death.” It would polarize the issue between Western and non-Western countries, something that was already a reality within the UN. A member of the South African delegation said that the perception of developing states was that Brazil “was being used by the EU to push the resolution” because, it said, Brazil gave no reason for the initiative. South Africa had no interest in taking over the Brazilian initiative, saying it would only support resolutions that dealt with discrimination in general, and also were focused on development issues. South Africa wanted to retain a leadership role in the African group, and support for the Brazilian resolution conflicted with that goal. So different reasons were given by various states for doing nothing.
The events connected with the Brazilian resolution stimulated increased attention to sexual orientation issues. There were references to sexual orientation rights in the opening ‘high level’ segment of the Commission session, in the debates around special procedures, and in an EU statement. New Zealand delivered a joint statement on behalf of 31 states (both current members and non-members of the Commission). The statement said, in part:
Sexual orientation is a fundamental aspect of every individual’s identity and an immutable part of self. It is contrary to human dignity to force an individual to change their sexual orientation, or to discriminate against them on this basis. And, it is repugnant for the State to tolerate violence committed against individuals because of their sexual orientation. … we recognize that sexuality is a sensitive and complex issue. But we are not prepared to compromise on the principle that all people are equal in dignity, rights and freedoms. The Commission must uphold the principle of non-discrimination. We urge all States to recognize this common ground and to participate in debate. We hope this Commission will not be silent for too much longer.
The 2005 New Zealand statement began a pattern. In 2006, 54 states signed on to a Norwegian statement that urged attention to the issues. The French-Dutch-Argentinan statement in the General Assembly in 2008 gained 66 supporters, then 67 when Barack Obama came to office in the US and retroactively added the US to the list. But it was 67 of 192.

10. EXPERT BODIES

The UN has a set of ‘political’ bodies, but also a number of roles for ‘experts,’ who are not to be simply representatives of their home governments. We have already seen decisions by the Human Rights Committee, an ‘expert’ committee established to monitor compliance with the ICCPR. We now turn to (a) independent experts, (b) the High Commissioner for Human Rights, and (c) the Yogyakarta Principles, drafted by a group of ‘experts.’

INDEPENDENT EXPERTS

The report of the Special Rapporteur on health, Paul Hunt, in 2004 dealt with sexual and reproductive health issues. He said these rights were central to efforts to achieve gender equality, poverty reduction, to combat HIV/AIDS and to achieve the Millennium Development Goals of the UN.

…discrimination on the grounds of sexual orientation is impermissible under international human rights law. The legal prohibition of same-sex relations in many countries, in conjunction with a widespread lack of support or protection for sexual minorities against violence and discrimination, impedes the enjoyment of sexual and reproductive health by many people with lesbian, gay, bisexual and transgender identities or conduct [referencing reports of special rapporteurs on torture and on extrajudicial executions]. Additionally, the Special Rapporteur recalls that the Human rights Committee, in Toonen v. Australia, observed: “Criminalization of homosexual activity … would appear to run counter to the implementation of effective education programmes in respect of HIV/AIDS prevention.” …
Sexual rights include the right of all persons to express their sexual orientation, with due regard for the well-being and rights of others, without fear of persecution, denial of liberty or social interference.

The United States under the Bush administration criticized the report for what it saw as a permissive stance on abortion and for suggesting that sexual orientation was within an international human rights framework. Pakistan

…rejected the Special Rapporteur’s conclusion that discrimination on the grounds of sexual orientation was impermissible under international human rights law and challenged the Special Rapporteur to quote exactly which article of any international human rights law convention prohibited such discrimination, According to Pakistan, the “easy” way for homosexuals, lesbians and transgender persons to avoid discrimination on the basis of sexual orientation was to “stop” engaging in non-heterosexual activity. In the words of the delegate, those of different sexual orientation should suppress their urges or “consult a medical doctor” and “get some medication.”

Egypt and Saudi Arabia agreed. Canada and Switzerland disagreed.

The mandate of the Special Rapporteur on Health was renewed by the Human Rights Council in December, 2007, but only after some questioning of Paul Hunt by Egypt on both abortion and sexual orientation issues. Hunt said that

…“taking a dispassionate view of evolving human rights jurisprudence” it was his considered assessment that sexual orientation constitutes a prohibited ground of discrimination in international law. He added that ten years ago, female genital mutilation would have been considered a matter of “cultural sensitivity”, but is now widely regarded as incompatible with the right to health, and that maybe in future there will be similar changes with regard to perceptions of homosexuality.

The various special rapporteurs meet once a year, along with independent experts and the chairpersons of working groups. The report of their meeting in June 2005, included the following paragraph:

43. The discussion then turned to the emerging cross-cutting themes, particularly human rights violations on the grounds of sexual orientation and gender identity. NGO representatives presented a publication containing excerpts of the authoritative findings, jurisprudence and commentary of treaty bodies, special procedures, the Sub-Commission on the Promotion and Protection of Human Rights and the Office of the High Commissioner for Refugees (UNCHR) with explicit reference to sexual orientation. They drew attention to the fact that discrimination on the ground of sexual orientation was widely practiced and that persons suffering such discrimination were more exposed to human rights violations and were less likely to claim their rights and obtain remedies. States should take measures to curb discriminatory laws and practices and take initiatives such as the enactment of non-discriminatory legislation, including the prohibition of discrimination on the ground of sexual orientation.

More recently, Special Rapporteur Martin Scheinin issued a report in August 2009, on Human Rights and Counter-Terrorism, addressing primarily the gendered impact of counter-terrorism measures. His discussion included attention to homosexuals and transgender people.

[20] Gender is not synonymous with women but rather encompasses the social constructions that underlie how women’s and men’s roles, functions, and responsibilities, including in relation to sexual orientation and gender identity, are defined and understood. … [21] International human rights law … requires States to ensure non-discrimination and equality (de jure and de facto) on the basis of gender, sex, sexual orientation and gender identity… [23] In Nepal, the counter-insurgency campaign that was defined with reference to terrorism was characterized by attacks on meti (effeminate males or transgender persons) by both sides, with reports that the Maoists were abducting meti and the police were taking advantage of the counter-terrorism environment to attack meti as part of a “cleansing” of Nepali society. … [33] …to stop dehumanizing victims of terrorism, Governments should remedy the gender inequality that makes women and lesbian, gay, bisexual, transgender and intersex individuals the targets of terrorism … [36] …in Egypt, Government targeting of lesbian, gay, bisexual, transgender and intersex individuals has been a way of shoring up religious legitimacy and signifying to opposition movements that the State is “the guardian of public virtue”.

There was opposition in the UN Human Rights Council when the report was received, mainly over his assertion that “gender” was socially constructed.

TREATY BODIES

The Universal Declaration of Human Rights and other early UN instruments had no enforcement provisions. In early UN practice, offending countries could not even be named in bodies like the Commission on Human Rights. This changed with the race convention, approved by the General Assembly in 1965. That treaty established an ongoing committee of experts that (a) would receive periodic government reports on state compliance with the treaty; (b) question government officials on compliance and (c) if the country had signed an ‘optional protocol’, give an opinion on a specific complaint, after the complainant had exhausted domestic remedies. These powers were brand new. For the first time at the UN there was an actual investigatory and adjudicative system, albeit limited in character. This 1965 innovation has been copied in all subsequent UN human rights treaties. In the previous section we have seen some of the decisions of the Human Rights Committee, established under the 1966 International Covenant on Civil and Political Rights – Toonen v Australia, Young v Australia, X v Colombia. Since the Toonen decision in 1994, it has become fairly routine for the Human Rights Committee, and other ‘treaty bodies’, to question governments about discrimination on the basis of sexual orientation.

In 2009, the committee established by the International Covenant on Economic, Social and Cultural Rights drafted a “general comment” on non-discrimination. The various treaty bodies have published such comments to indicate their interpretation of treaty provisions and to tell countries what to cover in their periodic reports. Other treaty body ‘comments’ have made reference to ‘sexual orientation’ as a prohibited ground of discrimination, but the 2009 comment under the ICESCR was more comprehensive than others. (1) It stated that “other status,” at the end of the list of examples of prohibited grounds of discrimination, included “sexual orientation.” (2) It included “gender identity” as another prohibited ground of discrimination, bringing transgendered individuals under treaty protection. (3) It referred to the Yogyakarta Principles (see below) for the definitions of “sexual orientation” and “gender identity”, (thereby responding to those state representatives who argue that these phrases are undefined or lacking in any standard usage). (4) It affirmed the principles of multiple and systemic discrimination, recognizing that individuals identities and desires are complex and intersecting (thereby responding to critics of ‘identity politics’ who see the LGBTI language as restrictive).

There had been a joint submission to the treaty committee by four international LGBTI NGOs, the first time such an organized action had taken place in relation to a treaty body on the drafting of a general comment. This represented a maturing of LGBTI lobbying at the UN, led by John Fisher of ARC International. As well, there now could be support from important general human rights NGOs. And lobbyists now had the ‘Yogyakarta Principles’, a document written in the formal and complex language of UN resolutions and instruments. Lobbyists were engaged, and they spoke the language of the institutions they were lobbying.

THE UN HIGH COMMISSIONER FOR HUMAN RIGHTS

The office of the High Commissioner for Human Rights was created as a result of recommendations from the 1993 Vienna World Conference on Human Rights. The High Commissioner heads the section of the UN secretariat responsible for human rights, while having a much higher profile than simply the head of a UN department. The High Commissioner has become an independent and expert voice, often ahead of the views of many member states.

Former Irish President Mary Robinson was High Commissioner from 1997 to 2002, with a much greater visibility than her predecessor. In October 1998, she met with leaders of the International Lesbian and Gay Association and indicated a positive interest in receiving information on human rights violations against lesbians and gay men. Earlier she had acted for Senator Norris in the challenge to Ireland’s anti-homosexual criminal law before the European Court of Human Rights. A following High Commissioner, Louise Arbour, had been supportive of LGBT equality rights when she served as a judge of the Canadian Supreme Court. In 2005 the website of her office included a reference to “sexual orientation” in a section on “cross-cutting issues.” In 2006, Arbour gave a speech at an international LGBTI human rights conference in Montreal. In 2008, Navi Pillay, the current UN High Commissioner for Human Rights, stated:

No human being should be denied their human rights, simply because of their perceived sexual orientation or gender identity. … Those who are lesbian, gay or bisexual, those who are transgender, transsexual or intersex, are full and equal members of the human family, and are entitled to be treated as such.

11. THE YOGYAKARTA PRINCIPLES

By early in the Twenty First century, as we have seen, there were significant parts of the UN system which recognized equality rights based on sexual orientation and gender identity. These changes were led by the ‘expert’ institutions – the treaty bodies, the independent experts, and the High Commissioner for Human Rights.

To consolidate and advance this new recognition, two leading UN NGOs, the International Service for Human Rights and the International Commission of Jurists, organized a meeting of academics, experts and activists at Gadjah Mada University in Yogyakarta, Indonesia, in November, 2006. The group included Mary Robinson, the former UN High Commissioner for Human Rights, eight UN special rapporteurs, twelve academics (many of whom were special rapporteurs), five individuals with experience on treaty bodies, two judges, and individuals connected with national human rights commissions. The sessions were co-chaired by Thai law professor Vitit Muntabhorn (who was the Special Rapporteur on Human Rights in North Korea) and Sonia Onufer Correa, who works with Brazilian NGOs and the international group Sexuality Policy Watch.

The meeting produced the Yogyakarta Principles, which state twenty-nine principles that are already well established in international human rights law. The principles, themselves, are non controversial. It then applies those principles to issues of sexual orientation, gender identity and intersexuality. One can logically object to the conclusions only if the now well established facts of sexual and gender diversity are dismissed on moral, religious or cultural grounds. International human rights law says that discrimination on the basis of sex and race cannot be justified on grounds of tradition, custom or religion. The same principle logically applies to sexual orientation and gender identity.

Because of the Joslin decision of the Human Rights Committee, holding that the right to marry, as formulated in the ICCPR, is limited to men and women, the Yogyakarta Principles do not call for equal marriage rights, only equal substantive rights for same-sex couples.

9. SLOW CHANGE

Change has been slow. LGBTI people are seen as relatively small minorities, and we are dispersed among larger populations. We have no natural institutions of our own that can support a leadership (such as schools or churches). We remain largely invisible. The ability to ‘pass’ gives individuals a way of dealing with stigma that runs counter to organizing for change. Most societies are happy to keep pretending that we do not exist, encouraging invisibility. And, it seems, discussion of sexual issues or sexual variation seems difficult in almost all societies.

The evolutionary and economic reasons for views focused on procreation (and, for that reason, against sexual variation) have been fading away. That change, however, is not evenly experienced in different parts of the world. Children are an expense in Amsterdam and Sydney, but an asset in India and Uganda. The role of religion, often, is to carry forward earlier social views. Secular societies have moved much more easily to the recognition of sexual and gender diversity than societies that remain religiously conservative. Western economic progress has supported individual subjectivity and personal freedom from parents, kin, and home community. Birth families and extended kinship ties, however, remain very strong in most developing states.

Jeffrey Weeks celebrates “The World We Have Won” in his description of the basic social and legal changes in the UK. Change is underway outside the West as well. China Daily called 2009 the “Year of Gay China” noting twelve events over twelve months. Indians will remember 2009 as the year the Delhi High Court ruled against the colonial-era prohibition of consenting male homosexual acts. In 2009, LGBT voices from developing countries were again at the UN, seeking recognition and redress. Opposition is still strong at the UN, but the ground is shifting.

Atrocities are also occurring, increasingly, it seems, in particular parts of the world. They are more visible now, and international opinion is more open to condemning them. Individuals and organizations now investigate and publicize abuses. That work must continue. It is a grim counterpoint to the progress in recognizing equal dignity for LGBTI people in other parts of the world.

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BIBLIOGRAPHY.

Nico Beger, Tensions in the Struggle for Sexual Minority Rights in Europe, Manchester, 2004.

Angela Collet, Interrogating ‘Sexualities’ at Beijing+10, Sexuality Policy Watch.

Francoise Girard, Negotiating Sexual Rights and Sexual Orientation at the UN, in Richard Parker, Rosalind Petchesky, Robert Sember, SexPolitics, Reports from the Front Lines, 2007, www.sxpolitics.org.

Rosalind Petchesky, Sexual Rights: Inventing a Concept, Mapping an International Practice, in Blasius, Sexual Identities: Queer Politics, Princeton, 2001, 118-139.

Ignacio Saiz, Bracketing Sexuality: Human Rights and Sexual Orientation, Sexuality Policy Watch, 2005.

Douglas Sanders, 377 and the unnatural afterlife of British Colonialism in Asia, (2009) 4 Asian Journal of Comparative Law, 165-206.

Joke Swiebel, Lesbian, gay, bisexual and transgender human rights: the search for an international strategy, (2009) 15 (1), Contemporary Politics, 19-35.

A. Wilson, Lesbian Visibility and Sexual Rights at Beijing, (1996) 22 (1), Signs: Journal of Women in Culture and Society, 214-218.

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