JURIST Guest Columnist, Graeme Reid, of Human Rights Watch, discusses the weakening of LGBT rights in international law …
For lesbian, gay, bisexual and transgender (LGBT) people the law is a paradox. The law can operate as an instrument of repression and control, but also as a tool for resistance and liberation. We find fragments of our collective histories in court records. Here we find a sorry history of people in countries across the world convicted of loitering, sodomy, cross-dressing or so-called “crimes against nature.”
For a vulnerable minority, and an unpopular one, domestic and international law has proven to be an indispensable tool, sometimes the only tool, for LGBT people to claim a space in the world. Two decades ago in a 1994 case, the UN Human Rights Committee in Toonen v. Australia asserted the right to privacy for same-sex consenting adults under international law. In 1998, South African courts repealed the Immorality Act and five years later, in 2003, Lawrence v. Texas saw the remaining sodomy laws in the US declared unconstitutional.
Yet some 76 countries around the world maintain discriminatory LGBT laws. Britain exported its sodomy laws to the empire, where many remain in force. These laws not only hold the threat of arrest and prosecution, but have other profound implications for LGBT people as well. Even in the many countries where sodomy laws are seldom enforced, such as India and Uganda, they still symbolize national discrimination against LGBT people.
Human Rights Watch has reported these laws are routinely used for blackmail and extortion, in settings as diverse as Kyrgyzstan, Jamaica and Uganda. Such laws contribute to a climate of prejudice and hostility in which violence occurs with impunity. The passage of the anti-propaganda laws in Russia led to a peak in violence against LGBT people. In Nigeria, the immediate effect following the enactment of draconian legislation was mob violence against gay men. The law in these places means that LGBT people must live a shadow existence under the threat of violence.
What seldom gets talked about is the psychological impact on individuals. The archaic language of these laws; “the abominable crime of buggery” as the Jamaican law reads, the more delicate language of “the love that dare not speak its name” or vague reference to “carnal knowledge against the order of nature,” casts a shadow over desire and the most personal expression of human intimacy. Read through the judgment of the Indian Supreme Court ruling that upheld the sodomy law: the language of family and kinship is reserved for heterosexual marriage, while for homosexuals the language is one of body parts engaged in sexual acts.
A Nigerian activist in Abuja recently told me a story about how, when she visited London, someone had asked her about the situation back home. She said she instinctively withdrew to a corner and spoke in hushed tones, before thinking, “What am I doing?” She had already internalized a fear of being noticed. What cumulative effect does this have on self-esteem and self-worth?
Sodomy laws have historically been used for political purposes. In France in 1307, King Philip IV brought sodomy accusations against the Order of the Knights Templar and dissolved it. The reason – he was heavily indebted to the Knights at the time. In England, King Henry VIII promulgated the Buggery Act in 1533 then promptly accused Roman Catholic monks of sodomy and used that as an excuse to confiscate their monastic lands. He also disposed of his opponent Lord Hungerford by executing him for sodomy in 1540.
Such tactics are still in use. The progress, passage and fate of the Ugandan Anti-Homosexuality Act has as much to do with political intrigue within the ruling party and President Yoweri Museveni’s fluctuating popularity as it has to do with homosexuality. Vladimir Putin wears a mantle of traditional and family values as political armor that works for him domestically, and also internationally as he takes the stage on an anti-Western ticket. In Malaysia, the political opposition is kept in check by recurrent accusations of sodomy against opposition leader Anwar Ibrahim. And in Zimbabwe we can tell an election is coming just by monitoring the level of homophobic rhetoric emanating from the ruling party.
Anti-gay laws are seldom just about homosexuality. Homophobia is both a reality and a ruse. Increasingly it is being used as an instrument of political repression. Laws that ban “propaganda,” “promotion” or support of LGBT groups are so vague and sweeping that they threaten fundamental freedoms of association and expression. And it is not only LGBT groups that are at risk. The recent wave of anti-LGBT legislation that seeks to outlaw not only sexual practice but also public expression of identity is almost invariably accompanied by broader attacks on activism, on political opposition and on the ability of local organizations to receive foreign funding.
This is playing itself out at a national level, but it is also evident internationally. At the UN, Russia is leading an aggressive charge against the rights of LGBT people under the rubric of “traditional values.” Speaking on the crisis in Ukraine at the UN Human Rights Council in March, Foreign Minister Sergey Lavrov caricatured recent advances in basic human rights for marginalized people as resulting from “[s]upporters of ultraliberal approaches, supporting all-permissiveness and hedonism, requesting a revision of moral values.”
Similarly with a push for more limited language on “the family” and an emphasis on the rights of the family as an entity, rather than the individuals who make up the family, the Russian government and its allies are pushing for a concept of human rights that protects the group over the individual. This rhetoric and practice creates a false dichotomy and pits “tradition” against human rights. LGBT rights are the wedge issue, but at stake are the basic principles of international human rights law: that human rights are universal, inalienable and indivisible.
So we should not fool ourselves into thinking that this is only about the rights claims of a vulnerable minority. The well-known adage that the way a society treats its minorities is a good measure of its democracy rings particularly true. What seems distinct about this particular time in our history is the way in which the rights of LGBT people have become a lightening rod for competing visions of the world.
Using homophobia for political ends is as old as the law itself. What has changed is that this is playing itself out on an international level and is becoming the language for articulating two very different visions of the world, one in which human rights are seen as a value to be cherished and upheld, the other in which human rights are seen as a profound threat.
Graeme Reid is the director of the Lesbian, Gay, Bisexual, and Transgender Rights Program at Human Rights Watch. He previously worked as founding director of the Gay and Lesbian Archives of South Africa, as researcher at the Wits Institute for Social and Economic Research and as lecturer in Lesbian, Gay, Bisexual, and Transgender Studies at Yale University. An anthropologist by training, he received a master’s from the University of the Witwatersrand, Johannesburg and a Ph.D. from the University of Amsterdam. This article was adapted from a speech at a Wilton Park conference.
Suggested citation:Graeme Reid, International Law and the Uncertainty of Rights for LGBT People, JURIST-Hotline, September 6, 2014, http://jurist.org/hotline/2014/09/graeme-reid-lgbt-rights.php.
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