Thursday, 16 April 2009

Global Gaze: When Falling in (Same-Sex) Love is a Crime

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By Jolly

In the last installment of the Global Gaze series, in which we looked at the gay rights struggle in sub-Saharan Africa, I alluded to the fact that one of the issues that gay rights activists struggle with is the criminalization of homosexuality in many parts of the world. I also referenced a declaration in the UN about LGBT rights. In the time since writing that, I’ve been thinking more and more about the phenomenon of criminalized homosexuality around the world and how easily taken for granted this issue can be in modern queer community in the US and throughout the West. What follows is a look at what it means when being gay is illegal around the world

In terms of the international community as a whole, UN documents and institutions are fairly quiet on the issue of criminalized homosexuality. This isn’t that surprising, since such instruments rarely address issues affecting sexual minorities around the world in general. While this may seem like a simple matter of terminology or oversight, Boutros Boutros-Ghali, former Secretary-General of the United Nations, put it best when he said, “We know that when a community is left out of the mainstream of international life, it is very difficult for its members to preserve even the most elementary human rights.”

The United Nations Declaration on Sexual Orientation and Gender Identity, which was sponsored by the French, backed by the European Union and presented to the UN General Assembly in December, is meant to address this. Article 11 of the declaration says, “We urge States to take all the necessary measures, in particular legislative or administrative, to ensure that sexual orientation or gender identity may under no circumstances be the basis for criminal penalties, in particular executions, arrests or detention.”

This proposal, of course, resulted in intense debate within the UN. First of all, it should be noted that General Assembly declarations, unlike international treaties and conventions, are legally non-binding. This means that states aren’t actually bound by it if they sign it, though approval does have significant symbolic and rhetorical value. 66 states, including all of the members of the EU and other Western countries, except for the US, signed it right away. The Obama administration has already said that the US will sign the declaration in the near future.

Shortly after its presentation, the Vatican joined many Arab and African states in criticizing the declaration. In a formal statement, 57 countries emphasized many common arguments against having human rights for homosexuals, namely that it could lead to “the social normalization, and possibly the legitimization, of many deplorable acts including pedophilia,” and that the criminalization of homosexuality is a domestic issue and therefore interfering in such policies violates the sovereignty of individual states.

Until the original declaration passes or is superseded by a legally binding document, scholars like Phillip Tahmindjis have pointed out that any norm regarding sexual orientation “has to be gleaned by inferences drawn from language addressed to issues of non-discrimination in the way they are implemented.” This is exactly what happened in 1994 when the UN Human Rights Committee ruled that the criminalization of homosexuality and homosexual acts is a violation of international non-discrimination laws in the famous case known as Toonen v. Australia. The case was brought by Nicholas Toonen, an Australian man who was challenging anti-sodomy laws in Tasmania, the last region of Australia to enforce such a law. The HRC ruled that passing different laws for gay men regarding sexual activity was a violation of international law because it made gay men unequal before the law and in terms of its implementation.

Despite this interpretation of international law, as of this moment homosexuality and/or homosexual acts remain illegal in 77 countries and are considered offenses punishable by death in seven: Saudi Arabia, Iran, Pakistan, Mauritania, northern Nigeria, Sudan, and Yemen. (As a matter of perspective, it’s important to remember that anti-sodomy laws weren’t overturned country-wide in the US until 2003 when the decision in Lawrence v. Texas was handed down). This criminalization is not, in most countries, merely an antiquated law which is no longer enforced, but rather legislation which is actively supported and carries serious punishments. In fact, countries throughout the international community continue to pass additional and increasingly harsh laws against homosexuality and homosexual acts as a backlash against greater condemnation of such policies.

A recent example of this can be found in Jamaica. Last month, despite international and domestic pressure, Jamaican Prime Minister Bruce Godling supported a new sexual offenses bill and promised to “protect” the country from homosexuality. “We are not going to yield to the pressure, whether that pressure comes from individual organizations, individuals, whether that pressure comes from foreign governments or groups of countries, to liberalize the laws as it relates to buggery,” Golding told Parliament. As I mentioned last time, Burundi, among other countries in sub-Saharan Africa, has also made a bid toward criminalizing homosexuality and passing tougher laws as well.

While all of this legal jargon is important and has an impact on individuals around the world, it’s also vital to take a look at the roles these laws play in people’s everyday lives. The Middle East is a region which I haven’t directly addressed yet in a Global Gaze column. The region contains, however, one of the most compelling stories regarding the impact that anti-gay laws have on sexual minorities around the world.

Israel stands with only Jordan, Turkey, and Cyprus as countries in the region in which homosexuality is legal. Israel goes beyond this and is considered the leader in terms of LGBT rights in the area. This creates a very real dilemma of identity for Palestinian sexual minorities living in areas such as Gaza and West Bank. In one of the most dramatic embodiments of the conflict between multiple identities that all LGBT people feel to some degree, young gay and lesbian LGBT Palestinians are forced to choose between living with their families and communities and hiding their sexuality in the face of anti-gay laws, or sneaking into Israel where the laws are much more tolerant and risking deportation and harassment due to their ethnic identity.

And the situation only gets more complicated as Israel’s relationship with its neighbors fluctuates, meaning it gets harder and harder to enter the country at all. Also, these young men and women cannot apply for asylum because Israel interprets international refugee law, and therefore asylum policies, to read that they do not apply to Palestinian nationals.

This scenario, as sad as it is, also shows the power that coming together as a global community can have. Despite their obvious differences, Israeli gay rights groups have helped to protect LGBT Palestinians and keep them in the country as best they can. As Hagai El-Ad, an Israeli gay rights activist, said in an interview last year: “The struggle for our rights is worthless if it’s indifferent to what’s happening to [gays in the occupied Palestinian territories] a kilometer from here.”

So what can the international community do about this issue? Encouraging states to sign the declaration before the UN is important, of course. Usually in the case of a declaration, national NGOs in signatory countries can use such an action to hold countries to their word and encourage them to fully implement the ideals enshrined in the declaration in their domestic legal systems. In this case, however, this strategy is less effective, as most of the signatories have already abolished their anti-gay laws. The focus, therefore, must be on trans-national advocacy to get additional states to agree to sign on.

The UN Human Rights Committee, the body which ruled in the Toonen case, now routinely requests information from states regarding what they’re doing to prevent, address, and prohibit discrimination on the grounds of sexual orientation domestically. It urges states not only to repeal laws criminalizing homosexuality but to go a step further and prohibit discrimination based on sexual orientation in their constitutions and laws. States and activists should support this work and encourage it to continue.

Beyond this, it’s up the international queer community to stay vigilant and monitor individual states for abuses. When your very existence is considered a crime against the state, not much hope exists for living a free or open life. It’s up to all of us to remain mindful of our LGBT brothers and sisters across the globe and support them in any way possible until we can achieve a world in which we are all free to be who we are.



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