By Peter Dunne
At the United Nations Human Rights Council March 2012 meeting in Geneva, an expert panel was convened to discuss the first-ever UN report focused on violence and discrimination on the basis of sexual orientation and gender identity: “Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity,” ( A.HRC.19.41.)
The document, published by the UN High Commissioner for Human Rights at the close of 2011, identified widespread and systematic rights violations that LGBT individuals are subject to around the world. Given that less than ten years ago much of the UN was silent on even the most extreme atrocities committed against Lesbian, Gay, Bisexual and Transgender (LGBT) people, this event represents a truly historic moment.
The High Commissioner’s Report presents significant opportunities for advancing human rights as well as raising important questions.
First, what role should international law play in protecting LGBT individuals? The report clearly refutes arguments that international human rights do not apply to violations committed on the basis of sexual orientation and gender identity. At the same time, it might also serve as a guide to those countries that seek to achieve change through bilateral channels.
In October 2011, British Prime Minister David Cameron announced that the U.K would consider conditioning foreign budgetary aid on the repeal of anti-gay laws. His comments were criticised as an example of neo-colonialism and as a failure to appreciate the sensitivities of sexual politics in the Global South. In some countries, homosexuality is seen as a ‘western’ idea, imported by the United Kingdom and the United States to undermine local values.
The new report illustrates that international law is a viable and perhaps more neutral alternative to bilateral diplomacy. Resulting from a South African-led resolution (Res. 17/19), the report challenges the suggestion that homosexuality is a ‘western’ notion. The many references to sexual orientation and gender identity in the official documents of the UN Treaty Bodies and of the UN Special Rapporteurs are evidence that LGBT rights are now firmly established within the international human rights framework.
Second, what is the importance of decriminalization in any LGBT rights strategy? Today, seventy-six countries worldwide apply criminal penalties to same-sex conduct. Criminalization leaves LGBT persons vulnerable to State persecution and legitimises other forms of abuse, such as social stigmatization and hate crimes. While the repeal of discriminatory laws must be a long-term aim, can there be a justification for focusing resources on short-term goals which do not reach the level of full decriminalization?
According to some governments, homosexuality and transgenderism are seen as being in fundamental conflict with cultural and religious traditions. In such environments, it may be counterproductive to prioritize full decriminalization. Where a societal framework does not permit even the mention of homosexuality, can one actually begin to debate anti-gay laws?
In many countries, it is not only the existence of homophonic laws but the discriminatory manner in which they are applied that affects people’s daily lives. In such circumstances, it may be most effective to focus immediate resources on working at the local level, within the existing legal framework, to ensure the greatest possible security for LGBT communities.
Finally, what are the needs of LGBT people beyond decriminalization?
In 1996, South Africa became the first country in the world to constitutionally prohibit discrimination on the basis of sexual orientation. Yet, despite legal protection, LGBT individuals in South Africa continue to experience discrimination and violence. In March 2006, Zoliswa Nkonyana, a nineteen-year old lesbian, was stoned to death by a Cape Town mob who accused her of being a “tomboy” who “wanted to be raped”. Nkonyana’s killers were finally brought to justice six years later, with four men each receiving prison sentences for the killing.
Zoliswa Nkonyana’s story illustrates that even where legal protections have been introduced public education is critically important. By courageously taking the lead at the UN and making LGBT rights a priority in its foreign policy, the Government of South Africa has struck a blow for LGBT equality that hopefully will encourage a level of social acceptance domestically and globally which mirrors its own existing legal protections.
The frank and open discussion of LGBT rights in Geneva supported by South Africa’s lead and fed by the High Commissioner’s report were indeed historic…but only if the messages and lessons learned are carried forth to positively impact the day-to-day lives of lesbian, gay, bisexual and transgender people around the world.
Peter Dunne is Harvard Law School Kaufman Fellow, and the International Gay and Lesbian Human Rights Comisssion 2011-2012 Global Advocacy Intern.