hunter of justice

Obama administration assesses status of lgbt rights in the U.S.

The State Department has filed with the United Nations the self-assessment report called for every five years in which governments describe their compliance with the International Covenant on Civil and Political Rights. In this Report of the U.S. on the ICCPR, lgbt rights issues figure prominently. As Council for Global Equality leader Julie Dorf describes, the featuring of lgbt issues signifies a sea change since the 2006 report:

In a major departure from a prior Bush Administration report, sexual orientation and gender identity issues featured prominently in this current submission, with an honest and reflective perspective on the state of LGBT rights in the United States. The report chronicles recent progress made to advance LGBT equality at the federal and state levels, including the repeal of “Don’t Ask, Don’t Tell,” the passage of hate crime legislation, support for a variety of family recognition mechanisms, and the legal recognition of gender identity discrimination in the workplace.

When the United States presented its last report to the Committee on Human Rights in 2006, the U.S. delegation tried to deny the application of longstanding sexual orientation and gender identity protections under the ICCPR, even though the Committee has recognized rights to privacy and non-discrimination for LGBT individuals since at least 1992.  During that 2006 review, a member of the UN Committee noted publicly that the U.S. delegation, which included the head of the civil rights division of the U.S. Justice Department, demonstrated a lack of awareness of the “longstanding and consistent” jurisprudence of the Committee on these issues.  The UN expert expressed his concern that by denying the existence of these rights under the ICCPR, the U.S. government might suggest that persons of diverse sexual orientations and identities are not fully entitled to the rights to life and privacy under the treaty.  In contrast, by reporting so extensively on LGBT-related concerns in this current UN report, the Obama Administration has now made an unequivocal legal statement recognizing that international law protects the human rights of all individuals, including on the basis of sexual orientation and gender identity.  Indeed, this is the legal justification for Secretary Clinton’s emphatic assertion that “human rights are gay rights and gay rights are human rights, once and for all.”

The report also identifies a number of areas in which LGBT equality has not been achieved, but where the Obama Administration has been stymied by Congress, such as with the repeal of the Defense of Marriage Act, and the enactment of federal workplace nondiscrimination legislation.

The rising star from 2011: Frank Mugisha

I doubt that there are any lgbt rights leaders in the United States who literally put their lives on the line, day after day, to fight for justice. So it's difficult to overstate the courage of Frank Mugisha, a leader of the political organization Sexual Minorities Uganda and of Icebreakers Uganda, a group offers counseling and suicide-prevention services. Mugisha has been imprisoned by the government in Uganda and targeted for death by the same group that encouraged the murder of David Kato.

Last month, after receiving the Robert F. Kennedy Center for Justice & Human Rights' annual Human Rights Award, Mugisha published a powerful op-ed in the NY Times, arguing that "homophobia - not homosexuality - is the toxic import" to Africa, and calling on Americans of color to join the struggle to end brutality against lgbt people in Africa.

Granted, I am way jumping the gun here - Mugisha is only 29 - but I see a Nobel in his future.

Following is an interview with Mugisha from The Root:

The Root: The Robert F. Kennedy Human Rights Award recognizes individuals who stand up, at great personal risk, to oppression in the nonviolent pursuit of human rights. Are you afraid for your safety, or even for your life?

Frank Mugisha: I fear. I fear for what will happen to me from the community, from people around me, from my friends. But my biggest fear is not coming from the government because, as an activist, I have a little bit of protection. My biggest fear is from the everyday people on the street. From my neighbors. Because I don't have any security, I could be attacked and killed like my friend [David Kato] was.

TR: What is life like every day for gays, lesbians and other sexual minorities in Uganda?

FM: There are different categories. If you are an activist, then you have to calculate and decide, "Should I take that street, should I go to that shopping mall, should I do this today, even?" Because you don't know where the harassment will come from.

Then you have an openly gay man who's not an activist -- the fear is as he's doing his everyday work. He has to ask, is he going to be harassed, is he going to be beaten, is he going to be a target?

Then you have people who are not out, but they are gay. Their fear is the media. Their family finding out about them, the media finding out about them. Their workplaces finding out about them. They fear that they could be fired, that they could be thrown out of their homes.

TR: You have discussed the way the media fuel homophobia by outing people. What else is driving homophobia in Uganda?

FM: Culture. People think homosexuality is not African, that [it] is from somewhere else, from the West. People believe the Bible has been very clear that homosexuality is a sin, and a big percentage of Uganda -- 80 percent -- is Christian, so that has also greatly increased homophobia.

But I've had a problem both with people racializing homophobia and also with saying homosexuality is imported. I think [it] is very important to recognize that there is homophobia in the United States, in Europe and in Africa. The question should be, what has made it increase?

When I was growing up, I knew people who lived together, man and man, as if they were married, and no one harassed them, no one arrested them. But today we are seeing this kind of new wave of religion that has come in and said the homosexuals you know are bad people.

TR: What role have U.S. evangelicals played in that new wave of religion?

FM: They talk about abortion; they talk about family values and all that. But in Uganda they've identified homosexuality as the issue they can pick on. They pick on so many issues, but they came to Uganda because Uganda is so Christian, and Ugandans are going to listen when they say homosexuality is a sin.

TR: You've talked about how pleased you were to hear from TransAfrica and learn that you were not alone in the fight to protect sexual minorities in Uganda. What can individual African-Americans do to communicate that message and show their support? 

FM: Work with us. I've done amazing work with TransAfrica. Other organizations can work directly with us. People can support progressive [nongovernmental organizations] and NGOs that work on human rights. Let people give them support and moral support. It will give us courage.

First official UN report condemns anti-lgbt violence, discrimination

In a report released today, the UN's High Commissioner for Human Rights called on all nations to decriminalize laws against homosexual conduct and to condemn discrimination and violence against lgbt persons. Commissioner Navi Pillay's report, released to the Human Rights Council in Geneva, "highlights critical human rights concerns that States have an obligation to address."

The report is the result of a resolution narrowly passed by the Human Rights Council last June. The Council is expected to take up the substance of the recommendations next year.

The weeks ahead: November 14 through 27, 2011

Monday, November 14 - A memorial service for Paula Ettelbrick, a longtime and much loved leader in the LGBT community who died of cancer on October 7, will be held at the Fourth Unitarian Universalist Society at 160 Central Park West at 76th Street, beginning at 6:30 pm.

Also November 14 - Washington DC - A reception honoring Frank Mugisha and other leaders in the fight to protect lgbt human rights in Uganda, co-sponsored by the Council for Global Equality and the Open Society Foundations, 1730 Pennsylvania Ave., 6 to 8 pm. Mugisha is the 2011 recipient of the Robert F. Kennedy Human Rights Award.

Wednesday, November 16 - Hearing on motion for preliminary injunction in Arizona Coalition Against Domestic Violence v. Greene, pending in U.S. District Court in Phoenix before Judge Roslyn Silver. In this case, the ACLU is challenging a requirement that organizations must certify that they do not perform, promote, or provide referrals for abortion in order to be eligible for the charitable tax credit. The law is scheduled to take effect on January 1, 2012. 

 

LGBTI unit added to Inter-American Human Rights Commission

The Inter-American Commission on Human Rights announced another important development in the exciting emergence of lgbt rights issues in Latin America:

During its 143rd regular session, the Inter-American Commission on Human Rights (IACHR) decided to create a Unit on the Rights of Lesbian, Gay, Bisexual, Trans, and Intersex (LGBTI) Persons, in order to strengthen its capacity to protect their rights.    In recent years the IACHR has closely followed the situation of the rights of LGBTI persons, primarily through precautionary measures, hearings, country visits, and promotional activities. The Commission has sought to protect and promote their rights and has witnessed the serious human rights violations that many of these individuals face in their daily lives.   

The Commission has confirmed that LGBTI persons face serious discrimination, both in fact and in law, in the countries of the region. Among other violations, the IACHR has received information about murders, rapes, and threats to which LGBTI persons are victims. In addition, LGBTI persons face significant barriers in their access to health, employment, justice, and political participation...   

Next year the Commission will evaluate the Unit's work and whether sufficient resources exist to make its efforts sustainable, along with the overall functioning of its Strategic Plan, and will decide on whether to create an Office of the Rapporteur on the Rights of LGBTI Persons...

More criticism of Cameron: Don't cut aid, switch it

British Prime Minister Cameron's warning to Commonwealth nations that foreign aid from the UK would be cut unless anti-gay laws changed may have been well intentioned, but its hamhandedness has generated repudiation by both conservative governments and human rights activists. Progressive African human rights organizations - including lgbt and AIDS service groups - and individual leaders have signed a petition stating in part:

Donor sanctions are by their nature coercive and reinforce the disproportionate power dynamics between donor countries and recipients. They are often based on assumptions about the nature of African sexualities and the needs of African LGBTI people. They disregard the agency of African civil society movements and political leadership. They also tend to exacerbate the environment of intolerance in which political leadership scapegoat LGBTI people [as the cause of] donor sanctions...

The document calls on the UK to redirect aid money to progressive grassroots organizations in Africa, making the obvious point that diminished aid to the poor will hurt poor lgbt people in the affected nation along with everyone else. Meanwhile, conservative officials who oppose liberalizing the criminal law had a field day reacting to Cameron, invoking national culture, sovereignty and dignity as defenses against efforts by the West to "impose" homosexuality on African nations.

The backlash, for example by political officials and the press in Ghana, will end up helping to scapegoat the human rights groups that badly need to be strengthened. As Cameron has acknowledged, his threat will produce no change in the near future. It's much more likely that these groups could.

Cameron's threat backfires

The statement by British PM David Cameron that Commonwealth nations could see their foreign aid from the UK cut if anti-gay laws remain on the books has turned into a mess for utterly predictable reasons.  It has played right into the hands of those who condemn support for sexual minorities as a western disease driven by western propaganda, a line ironically fueled by U.S. evangelists. So, here's the response to Cameron from Uganda, reported by the BBC:

...Ugandan presidential adviser John Nagenda told the BBC Ugandans were "tired of these lectures" ..."Uganda is, if you remember, a sovereign state...," he told the BBC's Newshour programme. "If they must take their money, so be it."...

Mr Nagenda said he doubted that the Ugandan parliament would ever approve a bill which proposed the death penalty for some homosexual acts."I believe it will die a natural death. But this kind of ex-colonial mentality of saying: 'You do this or I withdraw my aid' will definitely make people extremely uncomfortable with being treated like children," Mr Nagenda said.

And a smart critique from the Institute on Development Studies in the UK:

For activists and advocates of sexual rights, the very recognition of sexuality as a valid aspect of ‘development’ or of rights itself, has been a slow and thankless battle. As such, yesterday’s statement by David Cameron confirming that the British government will withhold aid from countries with homophobic policies might ostensibly be seen as a ‘victory’ of sorts. And yet there is something more fundamental at stake here – the idea of ‘sexuality’ as political object and the perpetration of a racialised discourse of difference that highlights the colonial continuities in ‘Development’.

Cameron’s statement suggests that a progressive politics of sexuality can only be imagined in the form that it has taken in Europe and North America... 

In India, for instance, the Queer movement, which has succeeded in overturning a colonial anti-sodomy law, has been critical of an ‘LGBT politics’. This has been a movement that recognises the politics of sexuality as affecting everyone – not just those who fall into the politically constructed category of LGBT – and being central to the politics of caste, class, race, religious fundamentalism, nationalism and economic development...

In this context, activists and policy makers in Europe and North America would do well to inculcate humility in light of these limitations and open the doors for more creative, radical and brave strategies in the politics of sexuality, especially those arising from the Global South, from such places as India and Brazil...

The UK government’s expression of support for rights of homosexuals in the global south, without reference to local struggles for rights, in such a context feeds into this impulse and enables exactly such an argument. At one level it places the concern for sexuality rights outside the given country, and at another, it disavows the significance and strategies of local activists and movements that are engaged in the project of actualising citizenship.

While the rise of sexuality on the development and rights agenda, is a welcome development, to be truly progressive western forces might do better by supporting Queer movements in the global south, learning from them, and recognising the specificities of Queer struggles.

Commonwealth Summit ends with continuing struggle over reforming anti-gay laws

The Commonwealth Summit, a biennial meeting of heads of state of British Commonwealth nations, ended its weekend meeting in Perth Australia with no decision on a new mechanism for addressing human rights abuses in member nations. The human rights controversy has arisen around a cluster of issues including the continuing existence of criminal and other laws targeting gay people. According to press reports, the conclave was driven in part by resentment toward Global North members nations to reject the recommendation of a blue-ribbon group to establish a Commonwealth human rights commissioner. The meeting also officially deep-sixed the group's report, entitled "Time for Urgent Reform." One of the human rights concerns addressed in the report (p. 100) concerned anti-gay laws:

We have also received submissions concerning criminal laws in many Commonwealth countries that penalise adult consensual private sexual conduct including between people of the same sex. These laws are a particular historical feature of British colonial rule. They have remained unchanged in many developing countries of the Commonwealth despite evidence that other Commonwealth countries have been successful in reducing cases of HIV infection by including repeal of such laws in their measures to combat the disease. Repeal of such laws facilitates the outreach to individuals and groups at heightened risk of infection. The importance of addressing this matter has received global attention through the United Nations. It is one of concern to the Commonwealth not only because of the particular legal context but also because it can call into question the commitment of member states to the Commonwealth’s fundamental values and principles including fundamental human rights and non-discrimination. 

On this issue, British Prime Minister Cameron added a warning of curtailed UK aid to countries that continue to enforce such laws. From The Guardian:

Britain has threatened countries that ban homosexuality with losing aid payments unless they reform, David Cameron has said. But he conceded that "deep prejudices" in some countries meant the problem would persist for years.

The prime minister said he had raised the issue with leaders of some of the states involved when he attended the Commonwealth heads of government meeting in Australia. Britain was "putting the pressure on", he said. But it was not a problem that would be solved by the time Commonwealth leaders are next due to meet, in Sri Lanka in 2013...

Ending bans on homosexuality was one of the recommendations of a highly critical internal report on the future relevance of the Commonwealth, written by experts from across the member nations. "We are not just talking about it. We are also saying that British aid should have more strings attached," Cameron said on BBC1's Andrew Marr Show in an interview recorded at the summit in Perth.

"This is an issue where we are pushing for movement, we are prepared to put some money behind what we believe. But I'm afraid that you can't expect countries to change overnight. Britain is one of the premier aid givers in the world. We want to see countries that receive our aid adhering to proper human rights. We are saying that is one of the things that determines our aid policy, and there have been particularly bad examples where we have taken action."

New rules in EU allow asylum seekers to cite persecution based on gender identity

Announced by the European Parliament's Intergroup on LGBT Rights:

Today the European Parliament formally adopted a new set of asylum rules for the European Union. The binding rules now include gender identity as a ground of persecution, which EU Member States must take into account. Governments have already agreed to the changes, which are final.

Until now, EU asylum law foresaw that “gender related aspects might be considered” by national asylum authorities when examining the potential persecution of specific social groups in their country of origin.

The resolution adopted today has replaced this text, and now specifies that “gender related aspects, including gender identity, shall be given due consideration”. The text now refers to gender identity specifically, and obliges Member States to consider gender-related aspects. Before, EU countries could still choose not to consider aspects linked to the applicant’s gender in asylum claims.

The text applies to all EU Member States except the United Kingdom, which opted out of EU asylum policies. The resolution was successfully drafted and negotiated by Jean Lambert, a British Member of the European Parliament in the Greens/EFA group.

This is the first time a binding EU Directive includes gender identity...

The binding rules will apply after they are transposed into EU Member States’ national law, except for the United Kingdom, Ireland and Denmark which opted out of the process. Due to access the EU in July 2013, Croatia is also expected to adapt its asylum laws.

Congratulations Judge Nathan

Congratulations to Alison Nathan, an openly lesbian former Associate White House Counsel, whom right-wingers almost scared the Senate into failing to confirm. The bad guys failed, and the confirmation succeeded by a 48 to 44 vote. Ali will join the Southern District of New York, where she will sit alongside (figuratively) openly gay judges Deborah Batts and Paul Oetken. Nathan and Batts are the only two openly lesbian federal district court judges; Oetken is the one and only openly gay male federal district court judge.

The most heavily invoked reason for conservative opposition during the debate over Nathan was not her sexual orientation or even the code word fear of "judicial activism." Instead, bizarrely enough, Sen. Jeffrey Sessions spoke for 18 minutes mostly about her openness to considering law from outside the U.S. in her rulings.

Conservatives seized on a book chapter that Nathan wrote about international human rights issues:  “Arresting Juxtapositions: The Story of Roper v. Simmons” in Human Rights Advocacy Stories. Conservative legal commentator Ed Whelan condemned the chapter's endorsement of the “‘internalization’ of international human rights law arguments” into Supreme Court decisionmaking on constitutional issues. 

Nathan's response to questions from members of the Senate Judiciary Committee illustrates her wild, left fringe thinking: Nathan said that foreign law would have 

“no relevance to my interpretation of the U.S. Constitution.” [But she acknowledged that there is] “an important debate” on “what role the Supreme Court’s reference to foreign law is playing in the Court’s decisions….

If confirmed, I would follow binding Supreme Court precedent in this and all areas.

Prior to her White House work, Nathan clerked for Justice Stevens, worked at Wilmer Cutler, and taught for brief stints at Fordham and NYU Law Schools. Her fellow clerks from the 2001-2002 term, including individuals who had worked for all nine Justices, submitted a letter to the Senate Judiciary Committee endorsing her nomination.

Comparative law casebook for LGBT issues available online

The International Commission of Jurists has published a tremendous new online resource: a 400-page book entitled Sexual Orientation, Gender Identity and Justice- A Comparative Law Casebook. Like traditional casebooks, this one compiles leading cases organized by topical areas: decriminalization, workplace law, family law, and religion, among others, with separate chapters on gender identity and expression. The book summarizes each case using components familiar to lawyers and accessible to all: facts, procedural posture, issue, relevant positive law if any, and the court's reasoning. In all, the book contains 108 cases from 41 countries. Kudos to ICJ for this tremendous contribution!

European Court of Human Rights abortion decision to be announced tomorrow

According to the European Court of Human Rights press office, a long-awaited abortion decision will be issued Thursday at 5 am EST:

The European Court of Human Rights will be delivering a Grand Chamber judgment in the case of A. B. and C. v. Ireland (application no. 25579/05) at a public hearing on Thursday 16 December 2010 at 11 a.m. – local time – in the Human Rights Building, Strasbourg.

The case concerns the restrictions on obtaining an abortion in Ireland. Press releases and texts of the judgments will be available after the hearing on the Court’s Internet site. 

The applicants are three women who live in Ireland: two are Irish nationals and one is a Lithuanian national. All three applicants travelled to the UK to have an abortion after becoming pregnant unintentionally.

The first applicant, a former alcoholic whose four children had been placed in foster care, decided to have an abortion to avoid jeopardising her chances of reuniting her family. She paid for the abortion in a private clinic in the UK by borrowing money from a money lender.

The second applicant was not prepared to become a single parent. While initially she feared an ectopic pregnancy, she was aware that it was not [the case] prior to travelling to the UK for an abortion.

The third applicant, in remission from cancer and unaware that she was pregnant, underwent a series of check ups contraindicated during pregnancy. She also understood that there was a risk that her pregnancy would cause a relapse of the cancer. She was unclear and concerned about the risks to her health and life and to the foetus if she continued to term and claimed she could not obtain clear advice. She therefore decided to have an abortion in the UK... 

...They rely on Articles 2 (right to life) and 3 (prohibition of inhuman and or degrading treatment) of the European Convention on Human Rights. They all also complain, under Article 8 (right to respect for family and private life) of the Convention, that the national law on abortion was not sufficiently clear and precise, since the Constitutional term "unborn" was vague and the criminal prohibition on abortion was open to different interpretations... Furthermore, the restriction placed an excessive burden on the applicants as women, in breach of Article 14 (prohibition of discrimination), and particularly on the first applicant, whose financial means were extremely limited.

The application was lodged with the European Court of Human Rights on 15 July 2005... Numerous third parties have submitted written observations: the Lithuanian Governement (one of the applicants being Lithuanian); the European Centre for Law and Justice in association with Kathy Sinnott (Member of the European Parliament); the Family Research Council (Washington D.C.) and the Society for the Protection of Unborn Children (London); the Pro-Life Campaign; Doctors for Choice (Ireland) and the British Pregnancy Advisory Service; and, the Center for Reproductive Rights and the International Reproductive and Sexual Health Law Programme.

US to seek reinstatement of gay-specific anti-discrimination provision in UN resolution

According to Reuters, the Obama administration next week will seek to restore a gay specific provision in a U.N. General Assembly resolution against unjustified execution.

The assembly passes a resolution condemning extrajudicial, summary and arbitrary executions and other killings every two years. The 2008 declaration included an explicit reference to killings committed because of the victims' sexual preferences.

But this year, Morocco and Mali introduced an amendment on behalf of African and Islamic nations that called for deleting the words "sexual orientation" and replacing them with "discriminatory reasons on any basis." That amendment narrowly passed last month by a 79-70 vote in an assembly committee dealing with human rights.

U.S. Ambassador Susan Rice told a gay and lesbian event at the United Nations that she was "incensed" by the committee vote and would seek to have the reference put back when the resolution goes to the full assembly on Dec. 20.

 UPDATE: The reference to sexual orientation was restored.

Inter-American Court of Human Rights to hear first sex/o discrimination case

The Inter-American Commission on Human Rights (IACHR) is seeking review in the Inter-American Court of Human Rights of a case in which Chilean courts denied custody to a lesbian mother on the ground that her homosexuality endangered her children. In April, the IACHR found that the ruling violated the American Convention on Human Rights, but Chile did not comply with the recommendations made by IACHR to rectify the situation. As a result, IACHR is asking the Inter-American Court to intervene.  It will be the first case raising sexual orientation discrimination to be heard by the court, and is the first case outside Europe to use international law in a gay parent's custody case.

The Commission's decision in April found that Chile was responsible for anti-gay discrimination against Karen Atala in the course of a judicial process that resulted in the decision to deny her the care and custody of her daughters. Ironically, Atala is herself a Chilean lawyer and criminal court judge. 

The IACHR is an autonomous body of the Organization of American States (OAS), which derives its mandate from the OAS Charter and the American Convention on Human Rights. It is composed of seven independent members who are elected by the OAS General Assembly. The Inter-American Court of Human Rights is located in San Jose, Costa Rica.

HT: Oscar Cabrera

The new globalization of "gay" "pride"

 

Gay pride events went global a long time ago. For years, Stonewall-timed marches and festivals have been taken up in other countries, in what was a clear importation of norms and concepts from the U.S. This year I've noticed a real shift in the balance: ideas and debates are moving in the other direction. Partly that is because of breakthroughs, especially in Latin America. In addition, concerns from beyond Euro-American borders are reshaping the contours of "gay" issues and implicitly questioning what it is, exactly, we are proud of.

The organizers of Toronto Pride, for example, made the boneheaded decision to exclude the Queers Against Israeli Apartheid group, triggering such an outcry that they had to back down. Protests against Israeli occupation policies also reached San Francisco and Madrid. As world opinion condemning those policies mounts, lgbt pride events will probably continue to be venues for expressing solidarity with Palestinians, and/or contesting whether this is a "gay issue."

Tel Aviv University Law Professor Aeyal Gross provides one concrete reason why it is. Gross, who marched in Tel Aviv Pride behind a banner saying "There is no pride in the occupation,"  describes how the Israeli government attempts to use its degree of support for lgbt rights as a distraction from its policy toward the Palestinians. "Victories for civil rights ... are quickly co-opted by the government in its efforts to present Israel’s liberal credentials. Gay rights have essentially become a public-relations tool."

Scott Long, head of the lgbt rights program at Human Rights Watch, makes a different point, arguing that the most significant form of legal oppression for lgbt people worldwide comes from criminal laws, themselves a legacy of both the old and the new colonialism:

As Americans, we can easily become accustomed to thinking that globalization means never having to go anywhere where you can't buy a coca-cola product. The language of "gay rights", also, has seemed like a U.S. export, even though there are queer-marked or -identified people in every culture. A truly global discourse of rights will, however, inevitably change the conversation.