Two Novembers
Movements, Rights, and the
Yogyakarta Principles
By Scott Long
1992
In 1992 in
Romania, repression
was a vivid legacy, privation a lived reality, and intimacy of any
kind had to survive in whatever privacy it could garner. That
November in the city of Timisoara, Ciprian C., in the last year of
high school, met Marian M., two years older. They were both men;
they fell in love.1
In 1989
Timisoara had begun
the revolution against Ceausescu’s dictatorship; then, blood
stippled the snow. Three years later, suspicion and the police
remained. Ciprian’s sister informed on the couple. Prosecutors
charged them in January 1993 with “sexual relations with a person of
the same sex.” The investigators called me a “whore” repeatedly.…
Marian admitted everything during the interrogation. I tried to deny
it, until I was shown my diary, which had been brought to the police
by my sister. Then I realized I would lose everything.2
Those were Ciprian’s memories.
Timisoara police gave
their names and photos to the press, calling Ciprian a “peril to
society”: Looking at the facts and taking into account the age of
the accused, you remain shocked by what they were capable of ….
[When arrested], the two did not admit the incriminating act ... But
after the investigation and the forensic report, it was established
that this was a typical case of homosexuality.3
The two were jailed for months, separated, their
families not allowed to visit. Inmates raped each repeatedly because
the guards announced they were homosexual. Ciprian remembered that
“once, during a religious service in the penitentiary, Marian kissed
the cross, as a believer. On his return to the cell, his cellmates
beat him for ‘defiling the cross.’” A court convicted the two in
June 1993, but—partly through foreign pressure—their prison
sentences were suspended.
Hate pursued them. Ciprian’s school expelled him; Marian
could find no job. In June 1995 Marian M. committed suicide. His
mother only found his body weeks later. Ciprian left
Romania and gained
asylum in another country.
2006
Human rights are a system of law: treaties and
jurisprudence, provision and precedent. Looking back six decades to
the beginning of that system, with the Universal Declaration of
Human Rights, its construction seems one of the major works of the
twentieth century. In 1948, though, few could have imagined the
system would eventually acquire the full solidity of positive law.
At the time the Declaration looked less like a set of legal norms
than a utopian rebuke to existing injustices, with no enforcement or
authority on its own. Only slowly did human rights principles harden
into law, and assume the expectation that they would protect, not
just critique. In November 2006, 16 experts on international human
rights law gathered in
Yogyakarta, Indonesia
to discuss sexuality, gender, and human rights. They included a
special rapporteur to the United Nations Human Rights Council, four
present and former members of UN treaty bodies, a member of Kenya’s
National Commission on Human Rights, and scholars and activists
from—among others—Argentina, Brazil, China, and Nepal. The result of
the meeting is called the “Yogyakarta Principles on the Application
of International Human Rights Law in relation to Sexual Orientation
and Gender Identity.”4 It contains 29 principles adopted unanimously
by the experts, along with recommendations to governments, regional
intergovernmental institutions, civil society, and the UN itself.
Everyone understood the meeting was groundbreaking
because of what it would cover. Yet the aim was normative, not
utopian, to codify what was known: to set out a common understanding
developed over three decades. The deliberations drew on precedent
and practice by international human rights mechanisms and bodies,
but also on national law and jurisprudence from the
United States to
South Africa.
There are models for such a process. In the absence of a
single covenant setting out the rights of internally displaced
persons, a body of experts in 1998 assembled guiding principles to
spearhead human rights approaches.5 A similar convening produced the
1998 International Guidelines on HIV/AIDS and Human Rights.6 Such
processes explore so-called “emerging issues” or “protection gaps.”
The gap is between what human rights law says and what it ought to
be doing. Necessary ghosts hover about such a gathering. Although no
one mentioned Marian M. and Ciprian C., they were, in a sense,
remembered. Behind what was said hung a history of failure: the ones
for whom protections against torture, against arbitrary arrest, for
health, for family, had not been sufficient. Two sets of
questions constantly arose:
• Who has been left out of existing protections?
• How can those protections then be given real force?
How can we expand their reach while acknowledging that their power
depends on the idea that they are already “universal?”
The Principles look forward, laying out a program of
action for states to ensure equality and eliminate abuse. They can
be seen as encoding progress already achieved for lesbian, gay,
bisexual, and transgender (LGBT) people, turning it into a new set
of norms with the promise of becoming binding. Yet looking
back—toward 1992, or 1948—the experts also saw the modern history of
human rights as one of gaps, in which standards never enjoyed
stasis. Protections against torture, once solid, could threaten to
erode. Moreover, the legal principle and the abstract norm needed
constantly to be measured against experience. Protections meant
nothing unless some pressure constantly kept forcing the question:
did they protect enough? The drive behind the Principles, demanding
whether existing understandings of law fitted the real shape of
violations, was the drive that made human rights make sense. As
South Africa’s
highest court wrote, “The rights must fit the people, not the people
the rights. This requires looking at rights and their violations
from a persons-centered rather than a formula-based position, and
analyzing them contextually rather than abstractly.”7
What bridged the gap between the norm and the need was
the movement. Human rights movements are often seen only as an
adjunct to human rights law, enforcers bringing up the rear. What
made the Principles possible, however, was the steady press of
movements representing lesbian, gay, bisexual, and transgender
people, presenting violations and demanding that institutions act.
They both established that law was not living up to its obligations,
and pointed the way for it to do so.
So-called “social movements” are not just political
actors, but repositories of experience, telling new kinds of stories
that demand new responses from human rights systems, as well as
governments and societies. One can see LGBT people’s movements as
opening “new conceptual space,”8 producing previously unrecorded
knowledge about how lives were lived and violations
happened, thus reconfiguring both the ambit of rights and the
expectations on them. The Yogyakarta Principles not only codify
norms but condense what movements have learned. Even looking between
the lines of a few Principles can show something of how lesbian,
gay, bisexual, and transgender people moved human rights.
Denial and
Recognition
Principle 3: Everyone has the right to recognition
everywhere as a person before the law. … Each person’s self-defined
sexual orientation and gender identity is integral to their
personality and is one of the most basic aspects of
self-determination, dignity and freedom. “Recognition before the
law” is principally a guarantee of judicial personality. It arose in
Yogyakarta in
the histories of people whom law or society refused to acknowledge
because their given identity did not match their appearance or their
gender as they lived it. In Nepal in 2007, for instance, Human
Rights Watch spoke to many people who identified as metis (an
indigenous term for those born male who reject being “masculine”):
they could not get jobs, find homes, or sometimes even see doctors
because the government denied them necessary IDs. Many would
recognize their situation as a symptom—not only of the economic and
legal consequences of inequality, but of how governments, where
sexuality and gender are concerned, can erase the idea of difference
itself.
When Mahmoud Ahmadinejad visited the
US in 2007, he made a
stir by saying: “We in
Iran …
we do not have homosexuals [hamjensbaz, a derogatory term] as
you have in your country .… In Iran, absolutely such a thing does
not exist as a phenomenon.” The US press treated the statement as a
strange outrage, but it was nothing new. Politicians had long been
making comparable claims. Namibia’s President Sam Nujoma blasted an
interviewer in 2001 who raised the subject: “Don’t repeat those
words [“gay” and “lesbian”]. They are unacceptable here .… Those
words you are mentioning are un-Namibian.”9
Nujoma was defending
Namibia’s law
prohibiting homosexual conduct. His tirade showed a syllogism which
recurs around the subject.
• We do not have these people here;
• We need laws against them.
The paradox is vicious. Whenever southern African
leaders said homosexuality was imaginary in their countries, real
people suspected of it were beaten or arrested. The talk about
terminology elides the jailed bodies, the broken bones, the
eliminated lives involved. Ahmadinejad’s statement seemed more
shocking only because
Iran’s criminal code
provides penalties, up to death, for homosexual conduct. His
language
described an absence. His laws enforce it.
However, the Yogyakarta Principles themselves are
ambivalent about these words. They use “lesbian,” “gay,” “bisexual,”
“transgender,” only sparingly. Their authors dealt in terms, not of
identities, but status: “sexual orientation,” “gender identity,” all
given as much space as possible to be “self-defined.” One could see
this wordsmithing as ignoring common experience. Yet the experts
hoped to capture that “experience” is never unproblematically
“common.” No reasonable standard of “cultural authenticity” exists
by which to judge that words or identities do not belong. There is,
however, a standard of autonomy and dignity saying
people should be able to determine who they themselves
are in the course of their lives. In the
US, a 2003 Supreme
Court decision overturned laws against consensual homosexual conduct
by citing “an autonomy of self that includes freedom of thought,
belief, expression, and certain intimate conduct.”10 The European
Court of Human Rights has called defining one’s own gender identity
“one of the most basic essentials of selfdetermination.”
The Yogyakarta Principles attempt to treat sexuality and
gender in ways they have not usually been treated by the law: not as
embarrassments better left alone, but as places where human beings
do things that help define themselves. This implies a fuller notion
of the “person” who is the subject of human rights. Her self becomes
more capable, and more capacious. The Principles deepen the ordinary
right to recognition as a person, finding in it not just legal
subjectivity,12 but personal self-determination. Recognizing this
also means respecting that people will define themselves in diverse
ways. Ahmadinejad talks of hamjensbaz, a Farsi
insult—derogating the thing he denies. Nujoma, for years, turned
“lesbian” into a curse against all Namibian feminists. Laws likewise
need to lump in categories in order to punish or repress. Ciprian C.
and
Marian M. became just “a typical case of homosexuality.”
Meanwhile, people and movements group under different banners to
talk back. “Lesbian,” “gay,” “transgender,” are only some of the
more familiar. In fact, there is no global “lesbian, gay, bisexual,
and transgender movement,” because it is fruitless to try to sum up
people’s experiences of gender and sexuality, and the violations
they face, in one vocabulary. There are people and movements
pursuing different goals, defining themselves in different relations
to those terms. The Yogyakarta Principles seek space for the diverse
ways people name themselves and form solidarities. Yet they also try
to get at something deeper. The Principles locate an elemental
source of rights back where diversity as well as solidarity
egins—the struggle for autonomy and self-determination.
Private and Public
Principle 6: Everyone, regardless of sexual
orientation or gender identity, is entitled to the enjoyment of
privacy without arbitrary or unlawful interference .… The right to
privacy ordinarily includes the choice to disclose or not to
disclose information relating to one’s sexual orientation or gender
identity, as well as decisions and choices regarding both one’s own
body and consensual sexual and other relations with others.
When Marian M. and Ciprian C. were arrested, over 100
countries around the world had laws against consensual sex between
adult men, and sometimes between adult women. In some places the
prohibitions were part of religious law or tradition. Most, though,
were tied to modern state authority.
Romania’s sodomy law, for instance, had appeared only 60 years
before—in the 1930s, as the country moved toward fascism. In the
1960s, as Ceausescu’s dictatorship tightened the screws, punishments
for homosexual acts drastically increased. Simultaneously, draconian
new laws banned all birth control as well as abortion, and subjected
women to regular gynecological exams, all intensifying the policing
of private life.13 Moral pretext blended into political purpose as
the state turned totalitarian. In the twentieth century, many
regimes used laws on “private” behavior to expand and secure their
power. When Stalin’s Soviet Union criminalized homosexual conduct,
one of his prosecutors explained that the least permitted privacy
could breed political dissent: “classless hoodlums” would “take to
pederasty,” and in their “stinky secretive little bordellos, another
kind of activity takes place as well—counter-revolutionary work.”14
In the
United States since
the 1960s, it has become a commonplace that sexual and reproductive
rights need the judiciary to shelter them from the overreachings of
majoritarian rule.15 From that vantage, it is surprising how often,
after the Berlin Wall fell, expressing the diversity of sexuality
was connected to democracy. It was not just a matter of rolling back
the surveillance powers of dictatorships which had spread sodomy
laws from Bucharest to Vladivostok. The totalitarian state had
erased the line between public and private: campaigners for sexual
rights created new knowledge about public and private spheres and
how the two could relate.
They showed that the right to remain private was fused
with the right to become public, the right to conceal with the right
to disclose, intimacy with association and expression. In post-1989
Romania,
defending privacy and dismantling the instruments of intrusion were
critical. The struggle against the repressive sodomy law, however,
had to be highly public.
For almost a decade after 1993, while allying with other
victims of (ethnic and religious) inequality, the campaign brought
something new to Romanian politics: evidence that an intimate fact
could become a basis of community and action. In 2001 Parliament
finally annulled the law that had allowed to jail Ciprian C. and
Marian M.16 In doing so it protected privacy and also, in a sense,
broke down the prison walls around it. The Romanian movement
attested that people cannot enjoy their privacies without public
freedoms; securing democracy meant giving those interrelations
institutional recognition. Where democracy is fragile in post-1989
Eastern
Europe, lesbians and gays have come under new attack. In
Russia,
assaults on peaceful Gay Pride marchers in 2006 and 2007 displayed
the rollback in political rights. As police wielded nightsticks on
the streets, politicians sneered that homosexuals should stick to
freedom in the bedroom. “There is another way,” one lesbian
countered after she was released from jail. “I love my girlfriend,
and I want to be allowed to say that in my own country.” 17
Equality and Politics
Principle 2: Everyone is entitled to enjoy all human
rights without discrimination on the basis of sexual orientation or
gender identity .… Discrimination based on sexual orientation or
gender identity may be, and commonly is, compounded by
discrimination on other grounds including gender, race, age,
religion, disability, health and economic status.
As dictatorships fell in
Europe and Latin
America in the 1990s, sodomy laws went too. In 2007, though, over 85
still remain worldwide.18 Almost all are a legacy of colonialism.
White colonizers legislated inequality, creating segregated
categories with radically incommensurate rights. Colonial rulers saw
“native” sexuality as feral, requiring constant restriction. Laws
around it helped keep subjugated people under both stigma and
surveillance. Great Britain imposed a sodomy law on its Indian
possessions in 1837.19 The Indian
Penal Code, a vast imperial experiment in making a
conquered territory submit to codified Western law, criminalized
“unnatural lust.” The provision spread to other colonies; today, the
Republic of India, Bangladesh, Singapore, Malaysia, Kenya, Uganda,
and Tanzania are among its inheritors.20 Other colonizers—French,
Dutch, German—imposed their own penalties for homosexual acts.
Yet 50 years after anti-colonial struggles for
liberation, the laws have stayed behind. Jamaican leaders defend an
imported law on “buggery” as intrinsic to their culture. The Indian
government still asserts in court that a Victorian paragraph remains
relevant after viceroys have gone.21 In many places, the old laws
have offered postcolonial leaders a convenient prop for the state’s
rickety power. And yet: A democratic, universalistic, caring and
aspirationally egalitarian society embraces everyone and accepts
people for who they are.… Respect for human rights requires the
affirmation of self, not the denial of self.… At issue is a need to
affirm the very character of our society as one based on tolerance
and mutual respect.22
That was the
South African
Constitutional Court in 2005, mandating equal recognition of lesbian
and gay relationships in law. The 1996 South African Constitution
was the world’s first to include sexual orientation as a protected
status. This came through long campaigning by LGBT activists who
were also veterans of the anti-apartheid movement. It came in a
country where criminalizing sex—whether interracial or otherwise
“deviant”—had been a foundation of apartheid rule.
South Africa’s
record since 1996 is full of failures to defend human rights
(including LGBT rights) in international arenas, and failures to
make them meaningful at home. The murders of three black lesbians in
South African townships in 2007 point to prejudice’s persistence in
places where unresolved poverty turns to violence. South Africa,
though, still shows that sexual and gender rights are not a detour
from the post-colonial path to self-determination. The confluence
making its progressive constitution possible came partly from the
length of its liberation struggle, and the way it engaged almost the
whole society—so that liberation was accepted in many different
meanings. The document had to take in compounded forms of
discrimination, as well as economic and social injustices that
limited the reach of rights on paper. LGBT activists in the rest of
the world like to point to the South African example as though the
relevant parts can be detached and taken to Zimbabwe or the US, much
as colonists
carried their laws like baggage. That is not its lesson.
Rather, it teaches about integrating rights struggles with one
another: how one group’s claims achieve greater meaning and reach in
connection with another’s. The interdependence of human rights is
fully revealed in the politics of movements, in how they support one
another but also learn from one another, and deepen the sense of the
terms—“freedom” or “equality”—they use.
Local and
International
Principle 27: Everyone has the right, individually
and in association with others, to promote the protection and
realisation of human rights at the national and international
levels, without discrimination on the basis of sexual orientation or
gender identity. “What are the lesbians doing here?” the
journalist demanded:
What can they ask for? Do they want now to inscribe
their pathologic irregularity in the Charter of Human Rights? ...
They have discredited this Conference and distorted the true
purposes of woman’s emancipation.23
He was describing participants at the World Conference
on Women in
Mexico City
in 1975 who had formed an International Lesbian Caucus. When even
the idea of crossing borders to advocate for human rights was
relatively new, lesbians were there—and lesbian and bisexual women
have steadily been at the forefront of
international women’s activism. LGBT people’s movements,
too, have continued to seek transnational alliances and demand
action from the international community. Activists have turned to
international bodies despite lack of resources to get there, and
lack of results when they go home. In 1995 women worldwide mobilized
to support references to “sexual orientation” in the final document
of the Fourth World Conference on Women in
Beijing. On the
meeting’s last night, debate dragged on until the language was
deleted. In 2004 dozens of national LGBT groups campaigned for a
resolution introduced by Brazil before the Commission on Human
Rights, on basic protections around sexual orientation. Brazil
withdrew it at the last moment.
The reasons for persisting are not self-evidently
practical. Mere visibility has not justified the expense and effort.
To be sure, international institutions have furthered issues of
sexual orientation and gender identity. International jurisprudence
has established the reach of basic rights to both privacy and
non-discrimination.24 Many UN special rapporteurs have responded
effectively to abuses against LGBT people. However, with the
exception of the European Union and the Council of Europe (which
have both made nondiscrimination a clear, common standard), the
political sides of international institutions have shown little will
to address even grave abuses related to sexuality or gender
identity. In the UN, neither the old Commission, the Human Rights
Council, nor the Office of the High Commissioner for Human Rights
have shaken loose the obstructionism of abusive states to affirm
clear principles, or accepted the jurisprudence as a mandate to act.
Now, with the efficacy of the UN’s human rights institutions
increasingly under fire, LGBT
movements—still waiting for most of those bodies to give
them simple recognition—are well qualified to join the firing squad.
The process leading to
Yogyakarta began after the 2004 Commission resolution failed.
The experts believed that if the UN’s institutions could
not say the obvious about how human rights applied to sexuality and
gender, they would do so themselves. At the same time, they knew the
movements in question were not going to join the firing
squad. International solidarity and standards continue to be
essential to how most LGBT activists see their future.
One reason is the intense opposition so many movements
face from national governments—the bald insistence that LGBT people
have no human rights, coupled with brutality. Fanny Ann Eddy, a
lesbian activist from
Sierra Leone,
testified to the UN Commission in 2004 that “because of the denial
of our existence,” we live in constant fear: fear of the police and
officials with the power to arrest and detain us .… We live in fear
that our families will disown us .… We live in fear within our
communities, where we face constant harassment and violence from
neighbors and others. Their homophobic attacks go unpunished by
authorities, further encouraging their discriminatory and violent
treatment of lesbian, gay, bisexual and transgender people.25
State denial leaves the international sphere the only
place where many activists can be heard. And when some governments
repeat by rote that LGBT people are not human, human rights seem
like a last affirmation of humanity. International pressure can
bring significant success, from mitigating individual injustices
such as Ciprian C.’s and Marian M.’s imprisonment, to forcing the
repeal of intolerable laws. Sexual rights activists face the
additional challenge, though, of building global connections that
reflect the real diversity of identities they defend: a visible
global movement broad enough to refute the discrediting slur that
bodily autonomy and dignity are imported freedoms, “Western” or
“Northern” concerns. Meanwhile, LGBT campaigners are likely to
remain—for worse or better—internationalists caught between hope and
desperation.
Conclusion
At the UN Human Rights Council in September 2006,
Nigeria, a member, scoffed at “the notion that executions for
offences such as homosexuality and lesbianism is excessive”: “What
may be seen by some as disproportional penalty in such serious
offences and odious conduct may be seen by others as appropriate and
just punishment.”26 At that time,
Nigeria’s government
was trying to pass a draconian bill providing harsh criminal
penalties for supporting the rights of lesbian and gay people, or
for public display of a “same sex amorous relationship.” Handholding
could be criminalized. The bill failed in 2007, but could still be
revived. Dismissal abroad, discrimination at home: these point to
the challenges ahead of LGBT lives, and of the Yogyakarta
Principles. Where the most basic rights, including life, are
threatened because of gender identity or sexual orientation, the
UN’s central human rights institution does little. The Human Rights
Council has been widely criticized for reticence over major
humanitarian crises such as
Darfur. Another test of
its credibility will be whether it can respond to the
control of sexuality and gender underlying almost daily violence in
every country. Inaction on the everyday violations, as on the
exceptional ones, will undermine it.
In November 2007
Argentina, Brazil,
and Uruguay cosponsored a panel on the Yogyakarta Principles at the
UN in New York.
Their representatives highlighted their governments’ commitment to
protecting sexual rights at national and international levels. More
than 20 countries’ diplomats attended; a Netherlands Foreign
Ministry spokesman announced his government’s intent to use the
Yogyakarta Principles as a guide for anti-discrimination components
of its foreign policy and aid. These indicate an awareness, arching
across the latitudes, of the urgent necessity of action. The onus is
on institutions to respond.
We talk of human rights as things, as possessions humans
have, but they are strange ones. For the most part, people only
declare they have a right at the moment they are denied it—the
instant it is not theirs. We realize how vital rights are only in
the lack of them. Human rights end as norms and laws, but they begin
as human hurts, hopes, and needs felt in innumerable daily lives.
The task of human rights movements is to turn those needs into
viable claims, then into standards that bind. Their task also is to
remind institutions when they are failing, by taking them back to
the needs where the norms began. The Yogyakarta Principles are part
of this double work. They help remember the Novembers when the law
fell short. They point
forward to where the law should go.
Scott Long directs
the Lesbian, Gay, Bisexual, and Transgender Rights Program at
Human Rights Watch.
-------------------------------------
1
The author investigated their case in January 1993,
interviewing family members and police and prosecutors. He
interviewed the two victims both before and after their trial, which
he attended in June 1993.
2
Ciprian C., testimony before the International Tribunal
on Human Rights Violations Against Sexual Minorities, organized by
the International Gay and Lesbian Human Rights Commission (IGLHRC),
October 17, 1995, at
www.iglhrc.org/files/iglhrc/reports/Tribunal.pdf. Quotations from
Ciprian C. that follow are from this source.
3
Gigi Horodinca, "Anuntul misterios," Tim-Polis, February
1993, quoted in Human Rights Watch and IGLHRC, Public Scandals:
Sexual Orientation and Criminal Law in
Romania (New York:
Human Rights Watch and IGLHRC, 1997), pp. 19-20.
4
The experts’ meeting, held at
Gadjah Mada
University, was organized by the International Service for Human
Rights and the International Committee of Jurists. It was chaired by
Sonia Onufer Correa of Brazil and Vitit Muntarbhorn of Thailand, and
Prof. Michael O’Flaherty both served as rapporteur to the meeting
and played an instrumental role in the development of the Yogyakarta
Principles. Human Rights Watch along with ARC International were
represented on a secretariat serving the experts and the convening.
The principles are available online at www.yogyakartaprinciples.org.
The document was later endorsed by eight other UN special
rapporteurs, by jurists and human rights experts whose countries of
origin included Botswana, Costa Rica, Pakistan, and South Africa,
and by a former UN High Commissioner for Human Rights.
5
See Guiding Principles on Internal Displacement , at
ttp://www.unhchr.ch/html/menu2/7/b/principles.htm.
6
“HIV/AIDS and Human Rights International Guidelines,” at
www.data.unaids.org/publications/irc-pub02/jc520-humanrights_en.pdf.
7
National Coalition for Gay and Lesbian Equality et. al.
v. Minister of Justice et. al., 1999 [1] SA 6 (S.
Afr. Const. Ct.), at 112-114.
8
Ron Eyerman and Andrew Jamison, Social Movements: A
Cognitive Approach (New York:
Polity Press), p. 55.
9
Quoted in Human Rights Watch and IGLHRC, More than a
Name: State-Sponsored Homophobia and its Consequences in
Southern Africa (New
York: Human Rights Watch, 2003).
10
Lawrence and Garner v.
Texas, Supreme Court
of the United States, 539 US (2003).
11
Van Kuck v.
Germany, 35968/97,
European Court of Human Rights 285 (June 12, 2003), at 69.
12
Manfred Nowak, UN Covenant on Civil and Political
Rights: CCPR Commentary (Kehl: N. P. Engel, 1992), pp. 282-83.
13
See Human Rights Watch and IGLHRC Public Scandals, and
Gail Kligman, The Politics of Duplicity: Controlling Reproduction in
Ceausescu’s
Romania
(Berkeley: University of California, 1998).
14
Quoted in Vladimir Kozlovsky, Argo russkoy
gomoseksualnoy subkultury: Source Materials (Benson, Vermont, 1986),
p. 154, cited in Human Rights Watch and the International Lesbian
and Gay Association – Europe, “‘We Have the Upper Hand’: Freedom of
assembly in Russia and the human rights of lesbian, gay, bisexual,
and transgender people,” June 2007.
15
Opposition to “judge-made law” has been a focus of
activism against reproductive rights in the US since the 1970s (as
it was against the civil rights movement after Brown v. Board of
Education), and after a Massachusetts court opened civil marriage to
lesbian and gay couples in the state in 2004, identification of
equal protection with “anti-democratic” judicial intervention has,
if anything, intensified. However, it was an elected
California
legislature that twice passed a bill ensuring marriage equality for
same-sex couples (the governor vetoed it in 2005 and 2007). See
Human Rights Watch, “Letter Urging Gov. Schwarzenegger to Sign ‘The
Religious Freedom and Civil Marriage Protection Act,’” September 10,
2007.
16
Sustained pressure from the Council of Europe, and
especially from the European Union—which made repeal of the law an
effective condition for
Romania’s
accession—assisted the decision. However, the very fact that these
institutions applied such pressure was partly due to advocacy by
groups (especially ACCEPT, the main LGBT organization) within
Romania.
17
Quoted in Human Rights Watch and ILGA-Europe, “‘We Have
the Upper Hand.’”
18
The most thorough survey is Daniel Ottoson,
International Lesbian and Gay Association,”State-Sponsored
Homophobia: A world survey of laws prohibiting same sex activity
between consenting adults,” 2007. However, because the application
of many laws and the legal interpretation of their terminology
remain unclear to outsiders and fluid at home, an exact number is
impossible.
19
This section draws gratefully on still-unpublished
research for Human Rights Watch by Alok Gupta, now clerk to the
South African
Constitutional Court. See also Martin L. Friedland, “Codification in
the Commonwealth: Earlier Efforts,” Criminal Law Journal, Vol. 2
(1), 1990.
20
English settlers in east
Africa exposed the
purpose of the code when it was introduced, protesting a policy of
placing “white men under laws intended for a coloured population
despotically governed.” Friedland, “Codification in the
Commonwealth,” p. 13.
21
See Arvind Narrain and Brototi Dutta, Naz Foundation
International, “Male-to-male sex, and sexuality minorities in
South Asia: An
analysis of the politico-legal framework,” 2006, pp. 26-27.
22
Minister of Home Affairs and Others v. Fourie and
Bonthuys and Others, Constitutional Court of South Africa, CCT
10/05, at 61 and 60.
23
Pedro Gringoire in Excelsior, July 1, 1975, quoted in
Charlotte Bunch and Claudia Hinojosa, “Lesbians Travel the Roads of
Feminism Globally,” in John D’Emilio, William B. Turner and Urvashi
Vaid, eds., Creating Change: Public Policy, Civil Rights and
Sexuality (New York: St. Martin’s, 2000).
24
The European Court of Human Rights, in a series of
landmark decisions beginning in the 1980s, held that privacy rights
were incompatible with the criminalization of consensual homosexual
sex, and later established protections against discrimination based
on both sexual orientation and gender identity. The UN Human Rights
Committee in its landmark decision in Toonen v.
Australia
in 1994 found that “sexual orientation” should be understood as
protected under the International Covenant on Civil and Political
Rights; in successive decisions it has extended the implications of
the conclusion.
25
“Testimony by Fanny Ann Eddy at the U.N. Commission on
Human Rights,” Item 14 – 60th Session, U.N. Commission on Human
Rights, at http://hrw.org/english/docs/2004/10/04/sierra9439.htm.
Eddy was murdered in her office, under unclear circumstances, later
that year.
26
“Recognizing Human Rights Violations Based on Sexual
Orientation and Gender Identity at the Human Rights Council, Session
2”, ARC International (2006); also available on Human Rights Council
Website, www.unhchr.ch .
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