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Two steps forward, one step back

Published in: Global Briefing

Two resolutions adopted by the United Nations Human Rights Council during the past 16 months represent potential advances and setbacks for the global lesbian, gay, bisexual and transgender rights movement. One is concerned with defending sexual orientation and gender identity; the other with protecting traditional values. Together they represent divergent views on the universality and indivisibility of human rights.

On 17 June 2011, the Human Rights Council, the body mandated to protect and promote human rights world­wide, adopted a landmark resolution introduced by South Africa on “human rights, sexual orientation and gender identity”. The resolution was adopted 23 to 19, with 3 abstentions. This sim­ple one-page document requested the UN High Commissioner to prepare a report in December 2011 and convene a panel in March 2012 to discuss the findings and suggest appropriate follow-up ac­tion. Although on the surface these are modest recommendations, it was a watershed moment. It was the first UN resolution to bring specific focus to human rights violations based on sexual orienta­tion and gender identity.

Also in 2011, the General Assembly of the Organization of American States adopted a resolution condemning “discrimination against persons by reason of their sexual orientation and gender identity”. These two resolutions represent significant milestones for the global lesbian, gay, bisexual and transgender (LGBT) movement, and demonstrate how the discussion on sexuality and gender identity has shifted to the global South, shattering the false dichotomy between the ‘liberal West’ and ‘conservative rest’.

Globalisation has had paradoxical effects for LGBT rights – on the one hand it has facilitated the movement, and on the other it has provoked a backlash. New possibilities for communication and connectivity have given impetus to international solidarity. Electronic communication has provided a vital tool for organisa­tions that need to work clandestinely. The Internet in particular has provided an invaluable channel of communication. Yet electronic communication can also be used as a tool for surveillance and en­trapment: a Cameroonian man was sentenced to three years in jail in 2011 for sending a text message, while police in Kyrgyzstan en­trap gay men, subjecting them to blackmail and extortion, by using personal dating sites. A series of murders of gay men in and around Johannesburg has been attributed to Internet dating sites.

The international response to the HIV/AIDS epidemic has led to an increased public discussion of sexuality and a health focus on vulnerable populations, including MSM (men who have sex with men). AIDS funding has helped health workers and emerging gay movements in Africa, Asia and Latin America recognise that ac­cess to health care cannot be separated from legal equality. This has given renewed impetus to calls for decriminalisation, even in countries where laws that criminalise homosexual conduct exist but are seldom implemented.

At the same time, this increased discussion and awareness about sexuality has had its downside. In Africa, for example, diatribes against LGBT people echo the language used to discuss HIV and AIDS as a symbol of moral decay. While the epidemic affects the heterosexual population and is not necessarily stigmatised by asso­ciation with homosexuality, the scale of the epidemic has inevita­bly led to social anxieties around sex. And, not unexpectedly, sexu­ality has increasingly become a focus of moral panic in a situation of rapid social change.

Many people feel that their traditional way of life is changing too rapidly, and LGBT people often become scapegoats. In some countries, instead of a move towards decriminalisation, we are seeing new legislation, the tightening up on existing legislation or even the implementing of previously dormant laws. Stricter laws are seen as a way of shoring up ‘traditional culture’. Of course, the irony that most of the sodomy laws are a vestige of colonialism in the first place is often lost.

Globalisation has also brought the growth of religious funda­mentalism, as we see with the export of the US ‘culture wars’, to Africa, the Caribbean and Eastern Europe. The US religious right is taking its international influence to new levels by interven­ing in other countries to promote laws that discriminate against LGBT people. One of the prominent names associated with this trend is Scott Lively, who appeared in Uganda in 2009, fuelling panic about a “gay agenda”. Not long after his visit, the notori­ous Anti-Homosexuality Bill made the first of several appearances in the Ugandan parliament. But Lively and others may learn that they cannot act with impunity spreading hatred outside US borders. Sexual Minorities Uganda, an umbrella organisation representing LGBT groups, is bringing a case against him under the Alien Tort Statute, which allows foreigners to sue in US courts in cases in which international law has been violated.

While the UN resolution on sexual orientation and gender iden­tity is expressly concerned with – and limited to – violence and dis­crimination against LGBT people, some countries have elected to go further. Argentina and Mexico City opened the door to same-sex marriage, while the Constitutional Court of Colombia gave Con­gress two years to legislate on equal marriage rights for same-sex couples. Brazil has also approved civil unions for homosexual cou­ples. Meanwhile, the marriage debate has intensified in Australia, although it was recently rejected by the Australian parliament. In New Zealand, a bill that would permit same-sex marriage has been through its first reading, and a full report on the issue will be pre­sented to parliament for consideration in February 2013.

In Asia, the issue of LGBT rights is gaining momentum. The Delhi High Court read down the 150-year-old sodomy laws in 2009. The long-awaited Nepalese constitution is likely to follow the 2007 Nepal Supreme Court ruling on non-discrimination on the basis of sexual orientation and gender identity. In August this year, cycling activists biked through the streets of Hanoi during Viet­nam’s first Gay Pride march, buoyed by an announcement that the government would consider recognising same-sex marriage. And in Singapore, a recent Court of Appeal decision has opened the way for a challenge to its sodomy laws (Section 377A of the coun­try’s penal code) on the grounds that they violate the equal protec­tion clause of the constitution. The issue of sexual orientation reap­peared in public debate from an unexpected angle – the partnership between Yale and the National University of Singapore. How will Yale, dubbed the ‘gay Ivy League’ due to its progressive and in­clusive policies, operate in an environment in which sodomy laws remain on the books, despite assurances from authorities that these are dormant laws?

In a sense, this represents a microcosm of where things are moving – in a globalising world, what is the place of archaic laws criminalising consensual relations between adults? Anwar Ibra­him, opposition leader in Malaysia, raised hopes about his com­mitment to equality for all when he suggested a review of the sodomy laws there, but appeared to backtrack in court when he reportedly said that some discrimination against LGBT people was justified. Jamaica’s incoming prime minister, Portia Simpson Miller, announced that she would review the country’s sodomy laws. Shortly after becoming Africa’s second female head of state, Joyce Banda of Malawi said that she hoped her country’s parlia­ment would repeal the indecency laws that are used against LGBT people. Months later, she reviewed her position, stating that “Ma­lawians are not ready to deal with that right now”. Africa’s other woman head of state, President Ellen Johnson-Sirleaf of Liberia, announced that she would neither repeal existing legislation, nor approve any new repressive legislation.

Academics continue to argue about the effects of globalisation on gender and sexual identities – some say that there is evidence of increased homogenisation and that we all march under the same rainbow flag. Others emphasise the resilience of local concepts of sexuality and gender and the emergence of a more diverse global movement, albeit on an uneven playing field.

More recently, however, the Human Rights Council adopted on 27 September a resolution on “Promoting human rights through a better understanding of traditional values”. That may seem like an innocuous concept, but it is not – far from it. The resolution – adopted 25 to 15 with 7 abstentions – has ominous implications. Underpinning this resolution is a challenge to the foundational principle of the Universal Declaration of Human Rights: namely that human rights are universal and indivisible. What this resolu­tion suggests is that human rights are relative – mediated by the vague and ill-defined concept of traditional values. By legitimising notions of cultural relativism, it threatens established human rights standards, in particular universality and women’s rights.

LGBT people are one of the many groups against which tradi­tional values and traditional practices are used to erode their human rights – indeed, for many, ‘traditional values’ is code for ‘homo­phobia’. This latest resolution is a pushback against the significant gains that have been made during the past decade to protect vulner­able groups from abuses, violence and discrimination.

What is clear from these recent developments, of which the two UN resolutions stand as bookends, is that while sexuality remains a site of intense conflict, the terms of debate have shifted from a North versus South or East versus West dichotomy to something much more promising and productive. South Africa and those who worked with it to ensure the engagement of the UN resolution on sexual orientation and gender identity should maintain their com­mitment to protect the universality of rights and continue to affirm that nothing justifies violence and discrimination based on sexual orientation.

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