By Peter Sioen*
“There are currently 1 billion people living under British or British inspired anti-gay laws”, the Kaleidoscope Trust’s new executive director, Paul Dillane, said in his opening statement in a workshop at the 18th Annual Student Human Rights conference held on March 25th, 2017 at the University of Nottingham. Human Rights students and lecturers from around the world met for a whole day to learn about and exchange views on “LBGT+ Rights in the 21st Century: Free and Equal?”. A string of upbeat, energetic speakers constituted a contrast with the bleak reality for LGBT+ people around the world. There were reality checks, controversial thoughts and many expressions of hope.
Professor Dominic McGoldrick, Professor of International Human Rights Law and HRLC co-director warned us in his opening speech that we were going to deal with lots of difficult and controversial issues. His warning proved to be correct. He was the first of many speakers that day to quote the first and recently appointed UN Special Rapporteur on LGBT+ rights, who speaks about a “vortex of violence”.
Professor Michael O’Flaherty, director of the EU Agency of Fundamental Rights, put LGBT+ in a European perspective on the 60th anniversary of the Treaty of Rome and reflected on all the achievements on LGBT+ rights: e.g. the Yogakarta principles, decriminalisation, refugee policy and the appointment of the UN independent expert. But we still have far to go, Professor O’Flaherty reminded us: in certain countries the situation remains problematic, many problems remain for many LGBT+ refugees, women suffer more, intersectionality is not recognised enough etc. Homophobic attitudes seem embedded, he said. Even 16 EU-member states have been called out by the UN for their insufficient approaches to LGBT+ rights. Professor O’Flaherty referred to a survey his agency conducted which revealed that there is not a single EU member state where more than 50% of LGBT+ people feel comfortable holding the hand of their partner in public. The survey results revealed widespread hate speech in the workplace, homophobia and bullying in schools. Only 1 out of every 10 incidents of discrimination gets reported in the EU. Professor O’Flaherty announced their report on LGBT+ asylum seekers (that has since been released). The major findings in that report included lack of statistics, issues around eligibility, problems associated with the interviews (such as “posture” analysis), problems with homophobic translators and other issues regarding trans people. But he also made 9 suggestions that point towards solutions, which included the fact EU member states can learn from each other, the treaty obligations, that the LGBT+ community is not the problem, the Malta conference, the waking up to trans and intersex issues. It’s a hard time to be working in human rights, he concluded, but “let’s live in hope!”
Arvind Narrain, the Geneva Director of ARC International, picked up on that last point and saw lots of reasons for optimism and hope, certainly with the appointment of the UN Special Rapporteur, who was voted for by a small margin (23 yes votes to 18 no votes and 6 countries abstaining) laying bare strong opposition. He had witnessed how that the people who spoke in favor of the appointment had spoken with passion. Their passion had driven the discussion. But he also saw a passion for a no-vote in the representatives of the Muslim countries. Before the appointment of the Special Rapporteur, LGBT+ struggles were local, said Mr Narrain. The appointment of the Special Rapporteur will give support to local articulation; the reports will have authority and can’t be ignored. We now have a mechanism: how we will use it, is important. Mr Narrain expressed that he wondered if the Special Rapporteur might be too focused on violence only.
After this plenary session, there were two parallel sets of workshops. The richness and wealth of the programme made choosing incredibly difficult. I presented a paper in the workshop titled “Regional perspectives on LGBT+ Rights: finding common ground”. I demonstrated how the Belgian gay movement had fought for civic acceptance and tolerance, which found its expression in an anti-discrimination law, their main agenda point. They were given civil partnerships very early on, almost like a concession, to make the gay voice go away. But new and progressive governments rushed to make same-sex marriages possible in 2003, as only the second country in the world. I discussed sociological models on how to try and explain the mechanisms of the movement and their achievements. I tried to give context to the current global tendency in the LGBT+ movement to focus on heteronormative marriage and adoption rights, which was not what the old gay movement was about, thus risking to lose some of the colourful, eccentric gay culture. Turkey, Armenia and South Asia were the other regions/countries highlighted in this workshop. In the parallel workshop they discussed “moving forward: remaining barriers to equality”. Presentations were made on blood donation, the non-heterosexual wage gap, pornography and the invisibility of non-binary gender identities in law.
Professor David Harris, HRLC co-director, chaired the plenary afternoon session. Unfortunately, Professor Stephen Whittle had to cancel last minute and couldn’t give his afternoon presentation on “gender-binary legal institutions, the challenge from trans and gender variant people” which I was very much looking forward to. However, the charming and soft-spoken Professor Javaid Rehman undoubtedly made the most controversial and hardest-hitting presentation of the day. He started by making, as he called it himself, two extremely “heretical statements: homosexuality is acceptable in Islam and the Islamic or Sharia law is flawed”. Professor Rehman delivered and substantiated such controversial statements skilfully. 76 states currently criminalize LGBT+ and half of them are Muslim, the other half not (however, the states with death sentences for LGBT+ people are all Muslim). There is no mention of homosexuality in the Quran or the Sunnah, apart from some positive references. He argued that in the story of Sodom and Gomorrah, it is not homosexuals who are condemned, but heterosexual men and that Muslims have now given this story an anti-gay interpretation. In Islam, there was always a tradition of accepting homosexuality; it was through colonial legacy and Section 377 that discrimination and prosecution was introduced. The Muslim tradition was quite liberal before according to Professor Rehman which became repressive due to insecure political structures. He called for a better understanding of the Sharia or Islamic “law” (quotation marks in original). Laws can never be Islamic, he pointed out; laws are always political. Law, also human rights law, is a positive law dispensed by political authority. “Converting repressive religious morality into contemporary positive laws doesn’t make the law Islamic,” said Professor Rehman. Calling for a better understanding of what law is, he stated that Sharia is not law, it’s morality, it has no mechanisms and that it is used as apolitical weapon. He argued that you can’t change a “divine law”, therefore it is not positive law. For instance, the UDHR is a moral document, not law. Professor Rehman further added that OIC states need to change their positive laws.
Johanna Whiteman, co-director of the Equal Rights Trust, shared with us her experiences with LGBT+-rights in Russian courts. Russia has a culture and tradition that is deeply heterosexual, she explained. The European Court of Human Rights doesn’t recognise same-sex relationships, inter- or transsexuality. She said we will have to fight to keep the rights we already have. She presented us with what could be done in countries like Russia where hostility towards and repression of LGBT+ people is on the rise and women’s rights, for instance, are being eroded. The Equal Rights Trusts partners with local organisations, for instance the Russian LGBT+ network. She has done extensive research in Russian jurisprudence, but there are very few cases. Despite her optimism, Ms Whiteman also expressed that courts don’t do their jobs and there are restrictions on freedom of expression. Yet, she also pointed out that there are equality and non-discrimination laws, sexual orientation is a protected trait and there is improvement in legal recognition.
After the afternoon plenary session, there were two parallel workshops, both on a single theme and with only one speaker. The first one, which I couldn’t attend was on “effective awareness strategies of LGBT+ issues”. I attended the workshop hosted by Paul Dillane, executive director of Kaleidscope Trust but also representing the Human Rights Lawyers Association, on “LGBT+ rights: international and regional advocacy strategies”. He said that the apparent rhetoric from some officials in government is unhelpful and offensive especially as there are real opportunities to advance LGBTI rights via work in the Commonwealth. Then he made that hard-hitting opening statement of the report, that the legacy of the British Empire is that now a billion people live under British anti-gay laws, the notorious Section 377. 36 of the 52 countries that criminalise LGBT+ are in the Commonwealth, he pointed out (quoting a different number than Professor Rehman earlier in the afternoon). He also concluded with hope-inspiring initiatives, including the appointment of the UN Special Rapporteur, the Equal Rights Coalition grouping like-minded countries and the all-party Parliamentary group.
The strength of this conference certainly was that it offered such a comprehensive global view. Living in our UK bubble, we sometimes lose awareness of how challenging life is for LGBT+ people all around the world. As a personal observation, I would like to note that the conference was attended by a wide variety of people, including many non LGBT+. To see this level of interest by the wider community, certainly of young human rights students, gives me much hope and trust in the future.
*Peter Sioen is a published author and psychologist with a background in business and inequality. He is currently an MA student in Understanding and Securing Human Rights at the School of Advanced Study, University of London.