Harvard Law School Conference: Diverse Sexualities/Disparate Laws: Sexual Minorities, the State and International Law
04/03/2010
It is my great pleasure to give the closing address tonight. Thank you first of all to the students of Harvard Lambda, co-sponsoring organizations Human Rights Advocates, Human Rights Journal, International Law Society, HLS Immigration Project and Middle East Law Students Association, supervising faculty and the Harvard Human Rights Program for their work in planning this event. And thank you to all who participated in the engaging discussions over the last two days – in the formal sessions and in those passing conversations between events where so many ideas are shared.
I wondered if perhaps the conveners assumed that I was a lawyer—which I am not—when they extended this invitation to me. I've often felt that I should be presented with an honorary law degree. Being a human rights practitioner requires you to have basic understanding of both international law and to be a quick study on both domestic civil and criminal law and you try to understand the ways in which criminalization impacts on the lives of LGBT people.
This conference has brought together an impressive group of scholars and practitioners, united by a common commitment to the advancement of sexual rights on the international stage. This shared commitment has animated the panels, breakout sessions, and informal discussions at the conference. It is this commitment that makes all of us, from the courtroom, to the classroom, to the health care center, to the picket line, into advocates, activists, and human rights defenders.
As advocates, we work to refine, articulate, and then deploy arguments and strategies for achieving fundamental human rights – as these are expressed in international law, within domestic legal frameworks and ultimately as they are experienced in our everyday lives. Recently, we have all been challenged to develop our understanding of the challenges we face in recognizing, protecting and celebrating our sexual and gender identities – whether lesbian, gay, bisexual, transgender, gender queer, down-low, kuchu, travesti, hijra, or otherwise – while simultaneously refusing to be locked into boxes of often ill-fitting identities while we acknowledge the ways in which we are all us harassed, hampered and restrained from expressing our true sexual and gendered selves under the law.
The exchanges between scholars and practitioners that have happened over the last two days—and will hopefully continue--allows for the development of a comprehensive body of knowledge on sexuality and the law that is useful for both lawyer (broadly speaking) and those more commonly referred to as the "activists." Just as importantly, though, it provides opportunities for sharing practical experiences, for shoring such experience up with legal arguments, and for taking this experience and legal acumen back into the classroom and into the field where these battles will be fought.
Collaboration between those working at various places and from various vantage points in our movement is crucial to its success. These collaborative efforts over time have generated a common guiding framework in the form of international human rights law, which is, in and of itself, evolving and becoming—slowly, surely—more deliberately inclusive of sexual and gender diversity. Our collaborative efforts are crucial if we are to make international human rights law, important as it is to us, mean anything at all in the lives of people whose voices have been reduced—by the domestic law, by stigma, by religious extremism, to mere murmurs.
The most important thing we do as advocates is to contribute to social change that positively affects the lived realities of those we care about, those whose voices are muffled by racism and sexism, those who have asked us for our help. It is all very well to know you have the right to equality as expressed in the Universal Declaration on Human Rights or the right to life guaranteed in your national constitution or the right to health guaranteed in the African Charter on Human and Peoples’ Rights, but (and this is almost a trite point for human rights advocates but unfortunately forgotten by many in power) none of this means anything if you aren’t able to see those rights manifest – through having a roof over your head, through consistent and respectful employment, through being able to have a family (however you define it), through being able to access health care that responds to the realities of your physical, psychological and SEXUAL needs…and through JUST PLAIN feeling safe on the street. I don't have to tell this audience, but I will say it anyway, for most LGBT people, in Rwanda or Roxbury, these rights are far from realized.
The fact that their continued imprisonment in Malawi is illegal under international conventions will only mean something to Tionge Chimbalanga and Steven Monjeza if their lawyers can challenge the homophobia of the courts, the media, and the community to hold the government of Malawi to its commitments.
These sorts of gatherings are rare opportunities to reflect on the relationship between law and social change – there are of course many tracts written on this subject and it is not my intention to dive too deeply into this debate. The Law offers is a powerful tool for change. Law Can Kill and Law Saves Lives. I was with two partners from UNAIDS yesterday who talked about how countries in the Caribbean that have sodomy laws—-Jamaica, Trinidad, and--are also those with the highest HIV sero-prevalence rates. No surprise. Such laws create an environment, in which men who have sex with men must hide—from the police, from health care services, from themselves. Their wives and female partners are forced to hide with them, creating a dance of disaster, in which the heterosexual women and men who have sex with men are made shockingly vulnerable to the devastation of HIV through harmful, archaic laws.
But changing laws and official polices is not enough. People are arrested in countries that have never had laws criminalizing same-sex relationships on the basis of presumed sexual orientation, under statutes that regulate loitering, vagrancy, debauchery or even hooliganism. And for lesbian and bisexual women, and transgender men, the policing of behavior often occurs outside of the strictly legal sphere--in the home, in the church, on the T, in the community.
Some of the most interesting things to come out of a conference like this for organizations like IGLHRC is that it allows us to think about our role in translating international law and global norms into the lives of those who have asked us for our help.
IGLHRC is an organization dedicated to multilateral action; we serve as a connective thread between grassroots, national and regional LGBT rights groups, governments, intergovernmental bodies, and professionals, in particular human rights lawyers. We engage directly with international law in several ways: we participate in gatherings in international spaces like the UN to directly influence the evolution of international law and policy; we facilitate the participation of activists in intergovernmental bodies supporting their efforts to hold their governments accountable to their international human rights commitments in places like the Human Rights Council and before the Committee to Eliminate All Forms of Discrimination Against Women; we make formal requests to the various Special Procedures Mechanisms of the human rights system to ensure rapid, weighty responses to human rights violations by states; we submit “Shadow” or Alternate Reports to UN Treaty Bodies so that governments don’t get away with marginalizing LGBT lives, forgetting to include us, or even lying about progress toward achieving human rights protections. These small victories are like onionskins, layered one upon another to form a source of law and a powerful voice of some of the world’s most respected diplomats, jurists, and civil society leaders.
We make extensive use of international law in our communications with national governments, reminding them of their commitments under the treaties they have signed. The proof of the weight of these arguments is the many responses we have received from governments in which they site national sovereignty or the primacy of local cultural values as a rationale for imprisoning LGBT people rather than rejecting the inclusion of LGBT rights in the international rights discourse. Among the extreme and unique aspects of the Anti-Homosexuality Bill currently being debated in Uganda is the article forcing Uganda to withdraw from international treaties that would prevent it from implementing the most brutal aspects of the new law.
But our partners doing grassroots activism every day remind us that a false tension is being created between legally sound human rights arguments and notions of "culture" and "tradition." These tensions may limits the kinds of legal claims that the sexual rights movement can make. Tactical choices that may be logical for the movement in one nation may be completely illogical and even counterproductive in others. Many argue that law must reflect the beliefs or morals of a society. Others see law as an instrument to influence these beliefs and to ensure that the power of the State is used to bring about a society in which the inherent rights of individuals are respected and protected from the tyranny of the majority. However one views such a debate, in making decisions about deploying international human rights claims – whether through courts or pushing for legislation to respect and protect people from discrimination on the basis of sexual orientation and gender identity – we must take into account the particular political realities of the national context. The time was right for a reading down of the sodomy laws in Delhi, India. Local activists believe that the time may be right for a similar challenge to the sodomy law in Botswana and laws against cross-dressing in Guyana. Advocates in other countries are clear that such a head-on legal challenge could seriously damage LGBT (and other sexual rights) movements. An attempt nearly 10 years ago to challenge the sodomy law in Botswana resulted in a very negative result. In the name of "equality," the High Court extended the provisions of the anti-homosexuality law to female-to-female sexual activity, an unexpected result of a strategy implemented perhaps too soon.
In some countries, though, legal action can lead to lasting and significant change. Most often, successful legal campaigns happen in partnerships and in the context of broader human rights campaigns. In 2007, the University of Los Andes, DeJusticia—a public interest law organization, and the LGBT activist group Colombia Diversa (who were honored just last month with IGLHRC's Felipa de Souza Award) partnered to challenge Colombia’s unfair marriage laws. Their partnership resulted in landmark victories that granted the same rights for same-sex couples as those provided to unmarried heterosexual couples, including pension, social security and property rights. Work on this case was part of a larger comprehensive campaign by Colombia Diversa that included movement building, public education, and efforts to impact policy making in Congress and City Council of Bogota.
In Nepal, prior to 2007, discrimination in employment and housing and police abuse was common, including the 2004 murder of a transgender woman. A growing LGBT movement, working at both the grassroots and in the Halls of Parliament, is moving the country toward widespread social change by partnering with legal advocates. The dynamic national LGBT organization, the Blue Diamond society, working with outside legal counsel, has led to a myriad of reforms, including the legal recognition of Nepal's "third gender" citizens. Because Nepal's Supreme Court has the authority to direct the legislature to enact specific reforms, legal action has been particularly effective in this instance. This past December, the collaboration evolved further when IGLHRC and Lambda Legal Defense responded to requested for technical assistance from Nepali lawmakers as they revise their Constitution and Penal Code to include legal protections that will extended full rights – including the right to marry – to LGBT people.
In working for the protection of diverse sexualities in various national contexts and within diverse sets of laws, we rely upon the existence of a common legal standard that can be used to hold authorities accountable for the protection of ALL of a country's citizens.
It is difficult to overestimate the value of human rights law in this project, as it provides a shared legal and normative framework…a point of reference. We are not engaged in a project of imposing "external norms" onto national contexts, and we must resist this facile dismissal of the universality of human rights. Rather, we must raise up local voices, follow the lead of local leaders, and provide assistance in the translation of international norms into local realities.
Because of course, human rights law must be framed in local terms BY LOCAL STAKEHOLDERS to be accepted and effective in altering existing social inequalities. This is why it is so important that a dialogue exists between local activists and international legal advocates. This is why I am so glad that you had the opportunity to hear the voices of Victor Mukasa, and other activists who represent emerging movements around the world.
A country's progressive record on international human rights issues, or strong domestic protections against discrimination, may still offer minimal safeguards to local lesbian, gay bisexual, or transgender victims of violence. The law is not a monolith, and progress at the national level may provide scant recourse to those whose claims are rejected by judicial officials, the police, community courts, and their families. Just ask the many women, still unnumbered, who experience corrective or curative rape in South Africa, despite that country's progressive anti-discrimination legislation. Too often, prejudice prevents officials from addressing and rectifying crimes against sexual minorities – if they investigate those crimes at all. Victims face re-victimization. Human rights abusers go unpunished. Communities remain broken and divided.
But the law has a political and symbolic and personal potency that goes beyond the reach of its enforcement. Law has the power to demonstrate to people that they matter, and that they are entitled to the same rights and protections as any other human being. That is the common thread that runs through all of the diverse tactics and strategies in this movement, at this conference, one which animates legal scholarship on sexual rights as much as it motivates the work that we as practitioners do, as we pursue a more just and equitable world. If we are to do this effectively and responsibly, it is crucial that we continue to have the kinds of dialogues and exchanges that we’ve witnessed this weekend – ones which remind us of the importance and urgency of this work, that challenges us to work collectively and with grassroots leaders in the lead, and that ensures that the legal strategies for developing and deploying international human rights law are used at the right time, in the right place, and to the maximum advantage.