It's embarrassing, these days, to be an American among international human rights lawyers. Or at least it was for me at the third triennial meeting of the International Lesbian and Gay Law Association (ILGLAW). After the last such meeting, I reported here on the progress being made on same-sex partnerships around the world. Held this year in Toronto, June's ILGLAW conference included lawyers and fellow travelers not only from Canada, but also from Austria, Australia, Colombia, England, Hong Kong, India, Israel, Italy, the Netherlands, the Philippines, Scotland, South Africa, and Spain. This intimate group of intellectual colleagues have dedicated themselves -- often at the risk of careers, family support, or even their lives -- to protecting lesbian, gay, bisexual, and transgendered folks' rights to live, love, and form families in countries from .au to .za. Every session drove home more vividly what we Americans knew to be true: Among developed nations, the United States is seriously lagging on gay rights; among developing nations, the United States puts up severe barriers toward basic human rights.
You might suspect this too, dear reader, but, even so, the facts will shock you. In this informal series of reports, I'll tell some stories of the astonishing progress being made worldwide on LGBT rights, in India, South Africa, Hong Kong, Israel, Australia, Canada, and Europe. But first, let me illustrate how humiliating it was to be an American at this gathering. I'll leave aside the shameful things you already know, like the death penalty, the abrogation of the Geneva Conventions at Guantanamo and Abu Ghraib, and the contempt for the United Nations. Our colleagues were simply astonished to learn that lesbian and gay rights are not categorized as human rights in the United States, as they are throughout the rest of the developed world. They were completely astonished by the feverish rhetoric that the American religious right wing hurls against lesbians and gay men.
But here's the humiliating moment that struck me most deeply. Several Americans were describing to our colleagues the horrifying Miller-Jenkins case, in which a Virginia court is invalidating a Vermont custody order and striking down a child's ties to her legal co-mother. Steeped in international human rights law, our colleagues suggested appealing based on the 1990 Convention on the Rights of the Child -- and were shocked to discover that the United States had not ratified this basic human rights document, nor is it likely to in the future. Receiving their looks of pity and disbelief, I understood for the first time how it felt to be an Israeli peace activist or a white South African activist under apartheid -- to feel deeply ashamed of your government's actions, unable to excuse (although we did try to explain) your fellow citizens' choices, and helpless to rebut the world's utterly appropriate condemnation. I'm not sure I've understood before how much I love my country -- and how much I long to be proud of it once again.
And yet even for Americans, this gathering was thrilling -- precisely because so much of the globe is moving ahead on LGBT rights more quickly than the United States. Herewith some stories and highlights:
Runaway lesbian brides -- and so forth -- in India.
Lately, I've been astonished by a series of news reports about young rural Indian women who run away from their parents and insist on marrying each other. As soon as I saw Aditya Bondyopadhyay, legal consultant to India's Naz Foundation International, I nearly tackled him asking for an explanation. When we'd first met in 2002, he had been well beyond dour about the situation in India for MSM, or men who have sex with men (the only term that he found was acceptable to men who use a wide variety of traditional terms for their subcontinental sexual identities and who interpret “gay” as meaning rich Westerners). In India, he had explained to us in 2002, aiming at marriage was a dream: his problem was that HIV/AIDS outreach workers were being arrested, jailed, raped, and beaten by police on charges of inciting men to violate India's notorious Section 377, the ban on “crimes against nature” left over from Queen Victoria's criminal code. Bondyopadhyay had told us that there were so few openly gay organizers in India -- a nation of more than one billion people, making up roughly one-sixth of the world -- that they could count each other on one hand.
What had changed? A great deal, Bondyopadhyay told me this time, visibly happy as we walked together in Toronto's pride parade (waving both India's and Pakistan's flags, to roars of approval from cheering onlookers). For one thing, the NAZ Foundation India Trust, a partner organization of NAZ Foundation International, had brought a lawsuit challenging Section 377 -- and had been shocked by an unexpected surge of support from across the country. Human rights groups, poverty groups, women's groups, and all of India's English-language dailies -- the voice of the nation's most powerful class -- were insisting on complete repeal. He was all but dumbfounded. “I never imagined that 377 would go in my lifetime,” he said. “But now I think it will be gone in maybe 10 years.”
Meanwhile, the ruling center-left coalition headed by the Congress Party (which had defeated the Hindu nationalist BJP government) was, like center-left governments around the world, on the side of LGBT rights. Without telling anyone, the government passport office has quietly added a third official gender option: In addition to male or female, Indian passport applicants can now check “E” -- which the office says stands for “eunuch,” the closest equivalent in English to “hijra,” a traditional identity for people born male who take up female clothes, names, identities, and occupations. The hijra have been getting elected to local office. And India's courts, Bondyopadhyay told us, have recently upheld a hijra's traditional Indian right to marry a man. Or to put it in Western terms: Same-sex marriage is now legal in India, at least for some.
The Internet has moved the LGBT communities forward dramatically, letting middle-class lesbians and gay men find each other in safety online -- and then in person. Gay Bombay, for instance, began as a listserv and now organizes hikes and kite-flying events at the beach; it may sound mild here, but it is revolutionary in India. This nascent pride has apparently been infectious among some young rural Indian women. In their late teens or early twenties, these women meet each other and fall in love; when threatened with arranged marriages, they run away from their parents and perform their own wedding ceremonies in Hindu temples, exchanging garlands and anointing each others' foreheads with red dots. In response, each set of parents charges the other woman with kidnapping their daughter, sending the police to bring back the women back by force. But here the story becomes different from the stories Bondyopadhyay had told us three years ago, which ended in suicides. Local women's groups or online lesbian groups are now backing the girls in court -- and local judges are, incredibly, siding with the women. “These are adult people,” he paraphrased judges' decisions with delighted disbelief. “Let them live together. What's your problem?” When the families harass the women, judges actually order police protection. Indian newspapers, of course, love these juicy stories, replete with disobedience, romance, and illicit female sex (which is not illegal, since Section 377 applies only to men). And so each pair of runaway lesbian brides inspires more women across that vast nation.
No wonder my friend Aditya was happy.
Right to life.
What does the right to life mean in South Africa? According to that nation's Constitutional Court, it means the government must offer at least some treatments to some of its 5.6 million citizens with HIV, or 13 percent of the population. South African Prime Minister Thabo Mbeki has been vilified worldwide for his bizarre belief that the human immunodeficiency virus, or HIV, does not cause AIDS -- and criticized at home as being responsible, through his opposition to distributing lifesaving antiretrovirals, for the deaths of more black South Africans than the notorious apartheid prime minister P.W. Botha.
According to South African human rights lawyer Lisa Forman, the goal of that country's rights-rich constitution -- including its Section 27 provision, guaranteeing access to health care -- was to be the “antithesis of apartheid” and to treat all human beings as equal. Under that standard, South Africans saw the government's refusal to provide “essential medicines in a pandemic” as bordering on criminal -- and as most certainly breaching its constitutional obligation. In a breakthrough legal case, the nation's top court ordered the South African government to deliver antiretrovirals at least to block mother-child transmission of HIV. Forman argued that for poor women, gay men, and sex workers -- all of whom have higher rates of HIV/AIDS than heterosexual men -- that right to life had been more easily abrogated because these groups were stigmatized, more easily raped or otherwise victimized, and more likely to lack money and healthcare. All rights, she argued, are therefore interdependent: Without women's rights or gay rights or economic rights, people lose their health and their lives. And without a civil society that guaranteed other political rights -- freedom of assembly, freedom of expression, and freedom of the press -- their rights to health and life could not have been won back through the courts.
Throughout the rest of Africa and in parts of India, the U.S. government's policies block that right to life. Those life-defying U.S. policies include the global gag rule that forbids family planning organizations receiving American funds to so much as mention abortion; the insistence on abstinence education while discouraging the distribution of condoms; and the willingness to turn the other way when Vatican workers or American missionaries distribute pamphlets propagating the falsehood that condoms have holes through which HIV can slip. Equally deadly is the U.S. government's more recent insistence that any group receiving U.S. funds must declare that it treats “prostitutes” or “gay men” -- and may not replace those terms, which many people find demeaning and insulting, with the more neutral terms “sex workers” or “men who have sex with men.” So here's the devil's bargain: NGOs can receive American funds but use language that keep away those they want to help, or they can turn away American funds and bring in people they can no longer afford to help.
The American and Vatican right-to-life movements are thus condemning many Asians and Africans to death.
Tasmanian devils, a fairy tale.
Australia, along with the United States, was one of the last developed nations to relinquish its anti-sodomy laws, and the explanation lies in its convict past, according to Tasmanian activist Rodney Croome. Those overwhelmingly male colonies had become equated with buggery, which, in turn, became synonymous in the national mind with criminality. When, during the 19th and 20th centuries, Australia built a sense of national pride and identity, the “other” against which that identity was built were those nasty convicts with their nasty habits. To be an Australian meant to be determinedly heterosexual, especially in states that had had the largest population of transported convicts, like Tasmania -- leaving little room for anything resembling gay pride.
Desperate to erase that criminal stain, eager to take their place as full Australian citizens instead of potential felons, and unable to repeal the sodomy ban (an offense punishable by life in prison) through the Tasmania legislature, a handful of Tasmanian gay men appealed to the United Nations Human Rights Committee in 1991. In the now internationally famous Toonen case, the UNHRC found that, under the International Covenant on Civil and Political Rights, Tasmania's sodomy ban was both sex discrimination and a violation of human rights to privacy.
But as Croome explained, just because the UN condemned the law didn't mean Tasmania was willing to relinquish it. “Their decisions aren't legally binding,” he said. “The government had to be convinced that it would be more painful not to act than to act.” Local politicians decried the UN ruling as an invasion of Australian sovereignty. Gay and lesbian groups organized a community education campaign, including a widely observed national boycott of Tasmanian produce. In one terrifying event, Nick Toonen and Rodney Croome, who were then a couple, went to their local police station and “confessed” to their crime by submitting detailed written affidavits of their lovemaking, which police grilled them on separately. But the police declined to arrest them -- a refusal that was splashed all over the national news. At that point, Tasmanians had had enough. Why were they suffering international condemnation and a national boycott for a law that even police wouldn't even enforce? In 1997, repeal came at last.
And here's the best part: The years of community education paid off. Today, every Australian state but one legally recognizes same-sex partners as being in “de facto” (or common law) marriages that are equivalent to de facto marriages for different-sex couples. But Tasmania's statute goes further. Its civil unions bill enables same-sex couples to come to city hall, get licenses, and publicly declare and celebrate their union -- not as a crime but a joy.
Married in Hong Kong?
In 2003, soon after Ontario's courts declared Canadian marriages to be gender-neutral, Hong Kong citizens Roddy Shaw and Nelson Ng flew to Toronto to marry -- and flew home intending to have that marriage recognized by their government. Shaw's organization, Civil Rights for Sexual Diversities, had long been working for human rights under Hong Kong's common-law system, which had taken the International Covenant on Civil and Political Rights as its bill of rights. Hong Kong's government has a mixed record on LGBT rights. On the one hand, the age of consent for male-male sex is 21 (five years higher than that for male-female sex); over the past five years, there have been more than 60 arrests and 26 convictions for male sex between ages 16 and 21. On the other, Hong Kong's government is now pushing an antidiscrimination law -- something that's still years away in the United States.
Shaw's approach to winning marriage recognition is much quieter and more bureaucratic than the approaches we're familiar with in the West. He's listed Ng on his taxes and has applied to Inland Revenue for the married person's allowance, or spousal personal deduction. His application has been winding through various layers of administrative review. As soon as Inland Revenue rejects it once and for all, Shaw will take the question to court. Given the history of Hong Kong's use of international human rights law rulings, Roddy Shaw fully expects that he will win -- albeit not full marriage rights but, merely, the right to use the spousal deduction.
Ah, but here's the trick. If the courts grants recognition on taxes, how could any other bureaucratic entity refuse recognition to Roddy and Nelson's marriage? Surely administrative recognition of any kind means administrative recognition of all kinds -- making it essentially indistinguishable from any other marriage conducted overseas. Which means that the next case would be an attempt to gain a marriage license in Hong Kong. After all, if Hong Kong residents can marry in other countries, how could the government justify refusing to allow those same citizens to marry at home?
In Israel, religious-only marriage leads to … same-sex marriage?
You've probably heard libertarians suggest that there's no reason for governments to perform marriages, which should instead be left to each religion. Enthusiasts should take caution from how that experiment has gone in Israel, where only religious groups can perform marriages, which are afterward registered with the state.
The result is a mess for couples that no religious group will marry -- say, a Jewish-Christian pair or a couple of atheists. Those couples take one of two routes. First, many Israelis simply live together. Given human nature, those couples' conflicts can find their way into court. In response, judges have created a case law status called “reputed” spouses (i.e., de facto or common-law couples), accorded many of marriage's legal recognitions. Where there is no civil marriage, judges are forced to invent it. For lesbian and gay rights, the status of “reputed” couple has been very useful, according to Tel Aviv University law professor Aeyal Gross. Courts have treated same-sex couples as “reputed” spouses for most legal purposes, with little objection, since this status is entirely outside the religious groups' purview.
Second, some Israeli different-sex couples fly to other countries -- Cyprus is most common -- for a civil marriage, which is then recorded and recognized within Israel. So what if a same-sex couple gets married abroad: Will it be valid in Israel? In September 2004, an Israeli male couple, Amit Kama and Uzi Even, a former Knesset member, flew to Toronto to get married and returned to ask Israel to ask to have their marriage registered. The case is now working through the courts. Israeli LGBT and civil rights lawyers fully expect to win. Stay tuned.
Picture Donald Rumsfeld, the U.S. secretary of defense, and Alberto Gonzales, the U.S. attorney general, appearing in front of an international group of LGBT rights lawyers -- and praising their work. Hard to imagine? Then you can guess how we Americans felt as their Canadian counterparts did just that, along with an impressive array of other titles, including the Ontario attorney general, the Ontario minister of health, and the Ontario Supreme Court's chief justice. Never before in my life have I heard so many straight white guys (only one was openly gay) speaking so passionately about ensuring that human rights are protected by the courts and never put up for a popular vote. The Ontario attorney general, a charismatic politician named Michael Bryant, told us, “You are doing the most important work that's being done in human rights today,” adding that the essential pursuit must be “not equality one day in the future when everybody is ready for it, but equality right now.”
The Canadian minister of defense Bill Graham told us proudly that in the past six months, military chaplains on Canadian bases had conducted three same-sex weddings of military personnel. (Try to picture two male or two female Marines getting married in Camp Lejeune, with the blessing of Bush and Rumsfeld, and you might be able to imagine the Americans' envy, amazement, and hope.) Graham told us that when he went to visit, say, his Muslim constituents at a Toronto mosque, who opposed same-sex marriage, he would explain that equal is equal -- and that if the equality provision of the 20-year-old Canadian Charter was to be interpreted as requiring the rights of anyone, it must be interpreted as requiring the rights of all. Or in his words, “By protecting the rights of everybody, we are protecting your rights.”
Politicians elsewhere use that line as well. In New Zealand last week, for instance, Labour MP Ashraf Choudhary, the country's only Muslim member of parliament, explained on national television that he voted for the nation's Civil Union Act because “despite the prevailing Muslim view that homosexuality was immoral, Muslims -- as a minority group in New Zealand -- had a duty to support the human rights of other minority groups.”
Justice minister Martin Cauchon, who lobbied ferociously to change his party's position on same-sex marriage, told us, “Never mind if I'm defeated because of this; on a question of principle, it's worth being defeated.” Could Democrats please borrow some moral values from their neighbors and try this approach in the United States?
Canada, Spain, and the world, oh my.
During the hours that our little family reunion of international advocates was enjoying a gala banquet at Toronto's Royal Canadian Yacht Club, the Canadian House of Commons passed -- 158 to 133 -- an equal marriage law. Parliament could have skipped that. Canadian courts had already gender-neutralized marriage in eight out of 13 provinces and territories, covering the vast majority of the population. Any Canadian couple in the remaining jurisdictions could easily head to a nearby province to get married and be recognized on returning home -- or could wait for the courts to knock down the remaining barriers. But Prime Minister Paul Martin was refusing to let parliament leave the sweltering 95-degree weather and go home for the July 1 Canada Day holiday until it passed the bill -- thus emphasizing the nation's commitment to its Equality Charter and to human rights and equality for all.
Just before dessert, Douglas Elliott, ILGLAW's president and one of Canada's leading LGBT rights lawyers, stood up to tell us the marriage bill had been passed. The room erupted with cheers, hugs, and prayers of gratitude. Mary Bonauto, the GLAD (Gay & Lesbian Advocates & Defenders) civil rights attorney who had brought and won both Baker v. Vermont (result: civil unions) and Goodridge v. Department of Public Health (result: marriage in Massachusetts), picked up the Canadian flag and waved it. “I've never waved a flag in my life before,” she said, and her eyes -- yes, this is corny, but it's true -- were wet and bright. “I am looking forward to the day when I can wave the American flag too.”
Two days later, Spain's parliament -- in a country where between 65 percent and 70 percent of the population supports equal marriage -- passed essentially the same law: full marriage rights and recognitions for two people, regardless of sex. That brings the national count to four full-marriage laws: the Netherlands, Belgium, Spain, and Canada. Expected next are South Africa and Sweden, to be quickly followed by all the other Scandinavian countries.
But full marriage is only part of the story. Most of Europe now recognizes same-sex partners, more or less comprehensively -- and with voters overwhelmingly in favor. During the past year, New Zealand, Switzerland, and the United Kingdom passed comprehensive civil partnership laws, which the Scandinavian countries already have. France and Germany have more partial partnership laws. Portugal, Hungary, Croatia, and Slovenia -- and probably, soon, the Czech Republic -- all have minimal domestic partnership statutes and are expected to build those up in the next few years. Italy's center-left coalition has a partnership law in its platform, which it's expected to try to pass if it defeats Berlusconi next spring.
The United States, in other words, is increasingly isolated on lesbian and gay lives -- as on so many human rights issues. Magdalena Daymeg Lepiten, a human rights lawyer from the Philippines, told our gathering that “rights” in Tagalog is translated as “katungod,” which is drawn from two root words meaning “because” and “I am.” Because I am: For no other reason, she tells her clients, you have rights as a human being, rights as a lesbian or gay man, and a right to love.
That's why it can be so embarrassing to be an American in a gathering of international human rights lawyers who take for granted that, because I am one, I have the right to live, to love, and to form a family in peace and freedom -- a family recognized by my government. Perhaps by the next time this group meets in 2008, more states (say, California, New Hampshire, New Jersey, New York, Oregon, and Washington, to name a few likely prospects) will have civil unions or, even better, full marriage rights, and we Americans will be able to hold up our heads up just a little higher.
E.J. Graff, a resident scholar at the Brandeis Women's Studies Research Center, is a Prospect senior correspondent. Most recently, she collaborated on Evelyn Murphy's book Getting Even: Why Women Still Don't Get Paid Like Men -- and What To Do About It, coming in October 2005.
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