Queering Human Rights

Source: Wikipedia

Source: Wikipedia

In a recent poll conducted in Peru by El Comercio, a majority agreed that same-sex couples should be given rights to create a joint estate, share health insurance, inherit retirement or disability pensions, and have the authority to make decisions for their partners in medical emergencies. This, of course, marks a sea change in opinions regarding the rights of sexual minorities that is closely linked to generational shifts. Significantly, this political development can be largely extended to the rest of the continent, where Peru is actually a bit of a laggard (see map). In a way, the human rights movement itself has had a similar generational shift— it has not always been the case that mainstream civil society organizations or international treaty bodies recognized the rights of sexual minorities as falling within the conceptual and legal purview of human rights. It’s actually something that’s started within the last quarter century.

Indeed, it was only in 1990 that the World Health Organization (WHO) officially removed homosexuality from its list of mental illnesses. More troubling is the WHO’s list of “homosexual-related diseases,” which only received attention for reform this past year. The first individual case recognizing the rights of sexual minorities at the UN level was in 1994: the former Human Rights Commission found that a Tasmanian law criminalizing homosexuality violated Australia’s obligations under the International Covenant on Civil and Political Rights.

A similar timeline unfolds in the civil society sphere. Amnesty International (AI) was the first international mainstream civil society organization to discuss the human rights of sexual minorities, including them in its reports on prisoners of conscience in 1991. In 1994, AI published Breaking the Silence, the first report by a mainstream human rights NGO that articulated the discrimination and violence faced by LGBT people as human rights violations. Following this move, other major human rights NGOs, like Human Rights Watch, began to report on these types of rights violations.

Yet this narrative makes it seem like the recognition and realization of the human rights of sexual minorities came largely from the North, “trickling down” to influence countries in the South. This could not be farther from the truth. Global South countries have played integral roles in advancing the rights of sexual minorities through international standard setting and domestic legal innovations.

In 2006, the UN High Commissioner of Human Rights called for the creation of a body of experts to generate a legal document that clearly outlined the applications of international law to sexual orientation and gender identity. This call led to the creation of a group of twenty-nine experts charged with the creation of these interpretive standards, later published as the Yogyakarta Principles. Of the 29 experts, well over half (18) came from the global South.

The creation and warm reception of the Principles in part relied on the support and openness of global South countries like South Africa and Argentina. These countries have undergone important domestic legal transformations in the manner in which they include sexual minorities in their polity. In fact, in 1996, South Africa became the first country in the world to constitutionally ban discrimination based on sexual orientation. Argentina has arguably one of the most progressive gender identity laws in the world. As opposed to most European countries which require a medical diagnosis (essentially patholigizing their gender identity), divorce, and/or sterilization, in Argentina one simply has to fill out a form at the local civil registry to change their gender on official government documents.

Worldwide Laws regarding Sexually Diverse Relationships and Expression. Source:  Wikipedia .

Worldwide Laws regarding Sexually Diverse Relationships and Expression. Source: Wikipedia.

These two countries have become leaders at the international stage in advocating for greater protections for sexual minorities. In 2008, a coalition of states, in which Argentina and South Africa featured prominently, sponsored a draft resolution affirming the rights of people of diverse sexual orientations and gender expressions, calling for the worldwide decriminalization of homosexuality (For countries that criminalize homosexuality, see map above). Likewise, in June 2011, South Africa proposed a successful resolution in the HRC to create an exploratory report on the violence and repression faced by people of diverse sexual orientations and gender expressions.

Tshepo Modisane and Thoba Sithole married in 2006 in Stanger Siva Sungam, South Africa. This was the town’s first same sex wedding. Source: Flickr Creative Commons via Trent Kelle

Tshepo Modisane and Thoba Sithole married in 2006 in Stanger Siva Sungam, South Africa. This was the town’s first same sex wedding. Source: Flickr Creative Commons via Trent Kelle

I applaud this step towards greater inclusion in the human rights movement and international and domestic law, a process which has accelerated thanks to the support and innovation from the global South. However, I emphasize the need for all actors involved to prioritize intercultural translation of these norms, lest a project aimed at securing liberty become another form of oppression. I would argue that the very diversity in the ways that humans have come to conceive their sexuality and gender expression is a human right in itself. So while we have seen impressive steps forward in providing protection for people of diverse sexual orientations and gender expressions, we need to ensure that greater coordination of advocacy and standard setting at the local, national, regional, and international levels does not create a homogenizing pressure to a single conception of sexuality or gender. This would create a symbolic death of identities and knowledges for which so many today risk their lives.


*Sean Luna McAdams is a researcher at The Center for Law, Justice and Society (Dejusticia).

Photo credit:  André Gomes de Melo