guardian.co.uk, Tuesday 13 September 2011 19.59 BST
Article history
Gay rights: a world of inequality
Gay people still live in fear in many countries around the world –
prejudice, torture and execution are common. Can two new legal and
diplomatic campaigns change attitudes?
Two teenagers are publicly hanged under anti-gay laws in Mashhad,
Iran, in 2005. Photograph: PA
Last Thursday, three men were hanged in Iran for the crime of lavat,
sexual intercourse between two men. The case is considered extreme
even by Iranian standards, because while the death penalty is in place
for homosexuality, it is usually enforced only when there is a charge
of assault or rape alongside it; the accusations in these three cases
were of consensual sex.
In Uganda, politicians have been seeking since 2009 to institute a
strikingly nasty piece of legislation: the death penalty for
"aggravated homosexuality" (being homosexual more than once) and, in a
totalitarian touch, penalties for teachers, doctors and even parents
who suspected that someone in their care was gay but didn't report
them. In Belize, there is a law on the statute books that criminalises
homosexuality; a gay rights group in the country, Unibam, has brought
a motion challenging the law, and had this reply from the minister of
works, Anthony "Boots" Martinez: "My position is that God never placed
anything on me for me to look at a man and jump on a man. I'll be
clear on it … How would you decriminalise that, I am sorry, but that
is law. Not only is the law made by man, that is a law made from the
Bible. Why you think God made a man and a woman, man has what woman
wants, and woman has what man wants, it's as simple as that. I'll
fight tooth and nail to keep that law."
For lesbian and gay people who live in one of the 82 countries where
homosexuality is criminalised, the world is not getting better: it is
getting significantly, demonstrably worse. The irony – it's actually
not an irony, it's a source of great shame, but it is also an unhappy
coincidence – is that 40 of these countries are members of the
Commonwealth, and this is a British export. Homosexuality was
criminalised here in the 1880s, and was therefore part of our
legislative package in the age of empire. By the time it was
decriminalised in England and Wales in the Sexual Offences Act of 1967
(Scotland followed in 1980 and Northern Ireland in 1982), we no longer
had any control over Commonwealth jurisdictions. The repeal came after
a report by Lord Wolfenden in 1957; if its findings had only been
enacted more swiftly, today unnumbered people across the Commonwealth
– at an estimate, more than a million – would be living entirely
different lives. Jonathan Cooper, CEO of the Human Dignity Trust,
says: "The human misery that criminalisation causes can never be
overestimated. The impact on lesbian and gay people growing up, you
cannot overestimate what it does to people living under those laws,
even if they're not being prosecuted. Just the fact that the rest of
society is denied to them, they have no access to it."
That's the bad news. Incredibly, for a story like this, there is also
good news. Apart from specific campaigning bodies such as Stonewall
and more general human rights agencies such as Amnesty, there is a new
crop of organisations trying to tackle this in a different way. This
isn't another story about new media taking on old battles, though an
awe-inspiring Facebook campaign, We Are Everywhere, has gained ground
since the hangings last week. But two groups in particular are taking
the old-fashioned routes of top-level pressure and the rule of law.
Kaleidoscope is described by its director, Lance Price, thus: "First,
we're being driven by the experience of the people in the countries
we're talking about. If you look at any country in the world where
there has been progress, it started with a small group of people who
had the courage to stand up. It's their struggle, these are their
countries. Second, the people involved have been active in politics at
a very high level [Price is a former adviser to Tony Blair], or active
in the civil service at a very high level. I'm not bragging. But we're
working all the time on behalf of people who struggle to have a voice,
and we can bring them to the attention of powerful people who do make
decisions, in their own countries and here."
It's not lobbying, exactly; it's not diplomacy, but it is
characterised by "quiet conversations with people who can make a
difference. We're going to have to engage with people, quietly, rather
than shouting at them."
The other group, the Human Dignity Trust, is not a campaigning
organisation either. It is not there to raise awareness and is not
even there to put pressure on governments. It is setting out to change
the law, in the Commonwealth and beyond, on the basis that it is a
breach of international human rights to criminalise someone's sexual
identity.
With a few exceptions – Saudi Arabia being one – all the countries
that criminalise homosexuality are signed up to either the
International Covenant on Civil and Political Rights or they are bound
by test case rulings in their respective courts. "This is a matter of
law," Cooper says. "Once you're not following the law, you're
undermining the rule of law." This is reflected in the list of the
trust's patrons – the former attorney general of India; the former
secretary general of the Commonwealth; Lord Woolf, former lord chief
justice of England and Wales; and a former judge at the Intra-American
court of human rights. "They are not pursuing this as part of a
lesbian and gay agenda. It's an international rights law agenda," says
Cooper.
The story of the trust is this: when Uganda's homophobic upsurge began
two years ago, Tim Otty, a QC with a "strong sense of
fairness" (according to his entry in Chambers UK), was asked by the
Commonwealth Association to give his advice on the law, and found it,
perhaps unsurprisingly, to be in breach of their human rights treaty
obligations. Cooper, also a barrister and a friend of Otty, explains
how the situation evolved: "Tim is pretty establishment – he's at
Blackstone chambers, he's not somebody you would associate with
lesbian and gay issues. Unlike me, because I've been around these
issues for 20, 30 years; I've done transgender cases, I've done
sexuality in the armed forces cases, I've done loads of this type of
stuff. So I was not at all surprised when, as we found out in our
research, 80-plus jurisdictions continue to criminalise homosexuality
around the world. That's almost half the countries in the world." He
was amazed that countries still criminalised in flagrant violation of
international human rights law, even having signed the treaty.
The test case for European law was Jeff Dudgeon v the United Kingdom
in 1981, when the activist brought a case against the British
government for the fact that criminalisation was still in force in
Northern Ireland. "In a way that was the revolution," says Cooper.
"Human rights now protected the lesbian and gay identity. But the
Brits didn't over-defend Dudgeon." If you are looking for excessive
defence, that happened in the Repulic of Ireland in the late-80s.
"They threw everything at this case, to say: you are not going to
change our law, human rights law cannot change Ireland's Christian-
based law. The Strasbourg court said: 'Actually, we can.'" After one
more case, in Cyprus, this became a settled matter for the Council of
Europe. Then, following a case brought by Nicholas Toonan in Australia
in 1991, the same decision was reached by the UN. "By the mid-90s, it
had been settled: international human rights law doesn't protect
lesbian and gay rights; it protects identity. And as a consequence of
protecting identity it protects you as a gay man or a lesbian woman
from having your identity criminalised. That's how it works," Cooper
explains.
So all the trust has to do now is change the world, through test case
litigation. It does so by finding an individual who is mounting a
challenge against, say, the government of Belize, and then, to put it
a layman's way, piling in. "I email our legal panel, asking: anyone
have any experience of litigating in Belize? Someone comes back and
says yeah, we'll represent you in this legal challenge. They bring in
as their counsel Lord Goldsmith, and the former attorney general of
Belize, Godfrey Smith. We turn up as the international community, with
a legitimate interest in the outcome of this case, but we do change
the nature of the struggle because we have approached it on the basis
that it's a major legal challenge. That is our intention." They're not
going to know what's hit them, I observe. "You almost feel sorry for
the judge!" Cooper replies, delighted.
Naturally, an appeal will be mounted, whoever loses, and the case will
then go to a higher court. "What that means is that when we turn up in
the difficult places of Africa and Asia, it's watertight. You can
imagine them saying: 'Well, that's South Africa, that's the US supreme
court' and trying to distinguish them. But it would be very difficult
to distinguish two privy council decisions, one from the South
Pacific, one from the Caribbean. If you are that independent judge in
Kenya, faced with those authorities, how do you say: 'We're going to
retain criminalisation'? You can't."
Price is quite cautious about the work he's taken on: he thinks the
process will be slow, and its impact subtle. "If we can just begin to
level the playing field a bit so that the other side is put, that will
be progress. Because, at the moment, those who want to preach hate
have pretty well got a free run."
Cooper, also measured but with the fire of optimism in his eyes,
thinks they could have all the decisions they need in five years. "We
will have to pay for cases in jurisdictions; I don't see why local
lawyers should do it pro bono. We will fundraise, and there is
something rather charming that you can say to somebody: 'If you give
us £50,000, I can more or less guarantee that you will have
decriminalised homosexuality in Tonga.' And actually, you know, that's
great."
--
You received this message because you are subscribed to the "USA-Africa Dialogue Series" moderated by Toyin Falola, University of Texas at Austin.
For current archives, visit http://groups.google.com/group/USAAfricaDialogue
For previous archives, visit http://www.utexas.edu/conferences/africa/ads/index.html
To post to this group, send an email to USAAfricaDialogue@googlegroups.com
To unsubscribe from this group, send an email to USAAfricaDialogue-
unsubscribe@googlegroups.com
No comments:
Post a Comment