How Did We Get Here?

By March 5, 2015 Showcase

In June, 2011, almost four years ago, the UN Human Rights Council, for the first time, expressed concern over patterns of violence and discrimination against individuals on the basis of their sexual orientation or gender identity.  After decades of marginalization at the UN we had finally been recognized by one of the UN’s political bodies, a body established under the framework of the UN Charter.

This was not the flapping lips of some wandering academic, or an independent expert or special rapporteur, appointed through a non-transparent process to tell governments what they should be doing.  The home governments of 19 states had instructed their official representatives in Geneva to support SOGI rights in the vote at the Human Rights Council. This shift was confirmed in September, 2014, when 22 states in the Council again said yes.  The Office of the UN High Commissioner for Human Rights was instructed to report on violations of our rights.

The United Nations had not been a friendly place.  I remember a vote twenty years ago in the Economic and Social Council (ECOSOC), on whether to grant NGO ‘consultative status’ to the International Lesbian and Gay Association (ILGA).  Consultative status gives an organization the right to be present in the formal sessions of UN human rights bodies, with very limited rights to speak and little chance that any governments would actually listen.  But you got to be in the room.  You could talk to government representatives.  You could link with other activists.

The vote on ILGA had been delayed and delayed, until the final hours of the ECOSOC session.  Our opponents had demanded a roll call vote, so that they would be on record as opposing us.  I remember two votes.  Malaysia voted ‘no’ – no surprise to anyone familiar with the country.  They put it on the record that they opposed the immoral lifestyle promoted by ILGA.  When the chair called for Morocco’s vote, there was confusion in the small Moroccan delegation.  We could see them panicking.  They had a choice of ‘yes’, ‘no’ or ‘not participating.’  What to do??  Their name was called a second time.  Finally a Moroccan delegate shouted out “absent.”  There was friendly laughter in the room.  We all knew their dilemma and laughed at their clumsiness.  They had forgotten to all go to the bathroom in time.

The UN was not a friendly place.  When I spoke as an “out” gay man in 1992, there was “open hostility” from some members of the Subcommission.  But that has changed.

Over the years we had strong support from a handful of states in the European/Western group.  Even those supporters were somewhat reluctant, for they did not want SOGI issues to be seen simply as a Western agenda.  And Western votes were not enough, on their own, to pass a resolution.

Something important happened in the politics around our issues.  Our Western supporters were joined by Latin American states, with leading roles played by Argentina, Brazil and Colombia.  This meant that a vote on SOGI rights could succeed – if it got some help from a few other Council members.  South Africa had sponsored the resolution in 2011, but South Africa had often been an unreliable ally because of its goal of being a leader for Sub-Saharan black Africa.  From Asia there might be a vote or two – maybe Japan – maybe the Philippines – maybe Thailand.  South Korea voted for us once.  This new alignment came together, for the first time on a substantive resolution on SOGI rights in a UN political body, in June, 2011.  It was a watershed moment.  We were on the human rights agenda of the United Nations for the first time.  The shift was confirmed in September, 2014, when 22 states on the Human Rights Council again said yes.

The results have often been amazing.  We saw UN Secretary General Ban Ki-moon, from conservative South Korea, lecturing African heads of government over their sodomy laws.  Amazing!  He has just been in India, again calling publicly for decriminalization.  We saw Navi Pillay, the South African judge of Tamil descent, as UN High Commissioner for Human rights, giving high priority to this new area of official UN human rights activism.

How did we get there (and here)?  Three roads led to Geneva, and beyond Geneva to Bangkok, where we meet today.

The first road was women’s rights.

The UN women’s convention of 1979 proclaimed that there had to be changes in “traditional roles”.  States agreed to change “social and cultural” patterns, and end “stereotyped roles.”  Attitudes had to change.  That had been true of the race convention of 1965, as well.  Racism has been endemic, but that thinking had to end.  The goal of changing existing patterns, existing thinking, was basic to the race convention, the women’s convention, and it is basic to our cause everywhere.

The UN organized four world conferences on women between 1975 and 1995, the last in Beijing.  The first statement in a UN body that we know of supporting our rights was made by a junior minister of the Dutch government in the 1985 women’s conference in Nairobi.

The first gay or lesbian organizations to gain NGO ‘consultative status’ at the UN were lesbian groups, the first in 1994 and the second in 1998.  They were working in the context of the women’s conferences and the women’s convention, and they slipped into to the UN’s NGO system without apparent controversy.  If they had applied even five years later, they would have been rejected.

The first substantive debate on our rights occurred in the closing drafting session at the Fourth World Conference of Women in Beijing in 1995.  Thirty-three states wanted the final conference declaration to include wording that recognized sex and gender diversity.  The chair, Patricia Licuanan of the Philippines, recognized that this was the first time there had been a serious debate on our issues within the UN system.  She ruled that the extent of division on the proposed sections meant that they could not go forward into the final conference session.  It was not enough that more states spoke in favor than in opposition.  There could not be a fight on the floor in the closing session.  The Beijing women’s conference is remembered by many as the real launch of our issues at the UN.

 The second road was about equality rights.

The first article in the Universal Declaration of Human Rights is our Rainbow Flag:

All human beings are born free and equal in dignity and rights.

<p”>As Ban Ki-moon has pointed out, in one of his many supporting videos, it is not ‘some’ human beings – it is not ‘many’ human beings – it is not ‘most’ human beings – it is ‘all’ human beings who are “born free and equal in dignity and rights.”  The official UN campaign for SOGI rights bears the title “Born Free and Equal.”

The discrimination that was the most obvious, most blatant, the best known, was the existence of anti-sodomy laws in half the world.  Those laws justified all forms of discrimination and condemnation.  Even if the laws were not being actively enforced (as was usually the case), they stood as official, legal, government-approved condemnation.  They justified police abuse, gay bashing and blackmail.  Gays and lesbians stayed in the closet to protect themselves.

The suave French, bless them, had decriminalized around 1800, and the spread of the Napoleonic Penal Code meant that half of Europe had no prohibition.  But Britain hung on to its ‘buggery’ law and redrafted it as “carnal intercourse against the order of nature” for the benefit of its colonies.  This created a checker-board in Asia-Pacific.  Muslim Indonesia had no prohibition.  Muslim Malaysia had a prohibition.  Buddhist Myanmar had a prohibition.  Buddhist Cambodia had none.  Christian Tonga has a prohibition.  French Polynesia has none.  Confucian Singapore has a prohibition.  The Confucian homeland, China, has none.

Our first legal victory at the UN on equality rights came in 1994, when the Human Rights Committee – an “expert” body – not a “political” body – ruled that the colonial era criminal prohibition in Tasmania was a denial of equality rights under the International Covenant on Civil and Political Rights.

The decision, Toonen v Australia, allowed Louise Arbour, then the UN High Commissioner for Human Rights, to support our rights at a huge rights conference held in conjunction with the Out Games in Montreal in 2006.  In terms of the UN this was groundbreaking.  We had never before had a top official in the UN system publicly supporting our rights.

The continued existence of the anti-homosexual sodomy laws became the clearest example of on-going discrimination.  These laws have been repeatedly condemned by the Secretary General and the High Commissioner for Human Rights.  The laws are still with us in 70+ countries.  In fact, over the last decade, a number of states in Sub-Saharan black Africa have proposed harsher anti-gay laws.  The threat posed by a new “Anti-Homosexual” law in Uganda was our leading international issue over the last decades, provoking extensive controversy and condemnation – and the most media coverage.  It overshadowed even the rapid hostility of the earlier statements of Robert Mugabe in Zimbabwe (who said we were worse than pigs or dogs) and Mohammed Mahathir in Malaysia (who when in office could not let a week go by without condemning the West over homosexuality and other immoralities).

The controversies over the proposed Uganda law led to something completely new – the threat, and partial implementation, of economic sanctions against a country for its flaunting of international human rights standards on homosexual rights.

Many remember, as well, the international reaction to the prosecution of two males in Malawi for entering into what was publicized as a wedding, another African story with strong international coverage.  UN and donor country pressure led to their being pardoned.

These African events kept the issues of our human rights alive at the UN, in the context of criminal laws and in the context of “equality” rights. There was an aggressive regional pattern in Sub-Saharan Africa.

To bolster our arguments for equal rights, the Yogyakarta Principles were drafted in 2006, using the formal language of the UN and emphasizing that it was existing human rights that were being claimed by LGBTI people, not any kind of ‘new’ or ‘special’ rights.

A major political shift on SOGI rights developed in Eastern Europe.  A new Russian-led regional pattern emerged.  Now we faced laws against ‘propaganda’ in favor of homosexuality, supposedly to protect children.  The laws were designed to shut us up and bar any demonstrations, parades or sympathetic media coverage.  We were being ordered back into our closets.

This was surprising, for after the collapse of the Soviet Union, there was a wave of decriminalization in Russia and the former eastern European satellite states.  They were all eager to join the European Union, and decriminalization was a precondition to entry.

There has been widespread international condemnation of the new anti-propaganda laws.  The western reaction included threats to boycott the Sochi Olympics.  President Obama pointedly did not appear at the events in Sochi.  Many athletes wore rainbow laces on their sports shoes, as a sign of solidarity with LGBTI people.  The International Olympic Committee revised its rules to prevent any country hosting an Olympic event in the future if it discriminated on SOGI grounds.

We now had a new international divide on SOGI rights.

On the one side was an alliance of Sub-Saharan black Africa together with Russian-led Eastern Europe.  On the other was the support from the Western group and Latin American states.

What of Asia?  There really are no regional patterns in Asia.  There are neither regional patterns of reform or of regression.  The major media stories over the last decade have focused on three, maybe four stories.

Two stories describe the new ‘sharia’ criminal laws in Brunei and Aceh.  Both are small jurisdictions, and quite exceptional in the region in terms of religion and history.  Soon, it seems, Aceh will have caning as a punishment for homosexual acts.  If the full sharia criminal law rolls out in Brunei, there could be death by stoning.  Neither law is yet in force.

The major recent story is of the trial and conviction of opposition leader Anwar Ibrahim in Malaysia.  There have been a flood of stories in all media.  All of the stories see Anwar’s imprisonment as an act of the ruling Malaysian coalition government designed to cripple the opposition political alliance.  But for us it is a muddled issue.  Anwar has never clearly opposed the existence of the sodomy law, or given support to LGBTI rights.  The story is actually one of Malays fighting Malays, using homosexuality as a weapon in their political fight.

The fourth story is the judicial repeal of the colonial era criminal law in India, and the restoration of the criminal law by the Indian Supreme Court in 2013.  In the region the Indian story was important for activists facing the same laws in Malaysia and Singapore.  In India it led to the Congress Party supporting LGBTI rights for the first time, but only as it went down to defeat to the BJP in the 2014 election,

No regional pattern in Asia.  Nothing comparable either to the regression in Africa and Eastern Europe, or the reforms in the West and in Latin America.  Sometimes a vote or two in support at the UN.  Constant ‘no’ votes from any members of the Organization for Islamic Cooperation (such as Indonesia, Malaysia and Pakistan).

The third road to Geneva (and Bangkok) was AIDS.

Most lesbians and gay men could escape discrimination by staying in the closet.  AIDS, a great tragedy, made gay men visible in great numbers in the West beginning in the 1980s.  In truth we are everywhere, and it became clear with AIDS.  It was the greatest ‘outing’ in history.

AIDS brought us into the various international inter-governmental systems.  What organizations became involved?  The World Health Organization, the World Bank, the UN Development Programme, UNESCO, UNICEF, regional development banks.  We were on a new international-level health and rights agenda.  UN AIDS was created to unify or coordinate policies.  The Global Fund is a major resource for gay-run health organizations throughout Asia.

Few, if any, would have predicted that the UN Development Programme would become the lead international inter-governmental agency for LGBT rights in Asia.  But that is what happened.  And it began with its work on AIDS.  In 2012 it wedded the UN initiatives and new international initiatives of the United States government, and produced the ‘Being LGBT in Asia’ program.  No one had ever seen anything like it.

In case you were wondering, there are no parallel programs – no ‘Being LGBT in Latin America’ – No ‘Being LGBT in Russia, Belarus and Crimea’ – No ‘Being LGBT in Africa’.

The support base for Being LGBT in Asia has now expanded, with the Swedish International Development Agency on board for Phase II.  Sweden and a number of other donors have been active on SOGI issues internationally for many years.  The new coalition is welcome.

So we are here.  Most of us have never before been in this beautiful UN regional conference room.  We are still relative newcomers to the United Nations, but a welcome has been extended.

Welcome to Bangkok.

Written by Douglas Sanders is Professor Emeritus, Faculty of Law, University of British Columbia, Vancouver, Canada. He is a former visiting LL.M. professor at Chulalongkorn University Bangkok, and currently an academic associate at the Centre for Human Rights and Peace Studies, Mahidol University, Bangkok.  He was the first “out” speaker supporting LGBT rights in a UN human rights forum when he spoke in the Sub-Commission on the Prevention of Discrimination and Protection of Minorities in Geneva in August, 1992.  He has written widely on issues of cultural minorities and

[1] Approximately two hundred LGBTI individuals together with some representatives of national human rights commissions and staff from various intergovernmental organizations, all from over 30 countries, participated in the dialogue, organized by the United Nations Development Programme and the US Agency for International Development.  The event marked the end of the ‘first phase’ of the ‘Being LGBTI in Asia’ program, and the launch of a second phase

Photo credits: UNDP/W.Field

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