LGBT Rights in the Commonwealth
Posted by AlexT - 10/09/09 at 04:09 pmThis post is written by Joel Simpson, Co-Chairperson of Society Against Sexual Orientation Discrimination.
Most of the countries of the Commonwealth still criminalize sexual acts between consenting adults of the same sex and other forms of sexual orientation, gender identity and expression. These laws, introduced in most Commonwealth countries in the 18th century, are heritage of the colonial period, as recently highlighted by the High Court of Delhi, India, in the judgment that struck down section 377 of the Indian penal code punishing sexual activities ‘against the order of nature.’
In 1994 the Human Rights Committee in Toonen v. Australia established that such kind of criminal provisions violate the principle of non discrimination and the right to privacy as enshrined in the International Covenant on Civil and Political Rights, therefore constituting a violation of basic human rights as recognized by international law.
Similarly, other criminal provisions introduced in the same period by the colonial power punish non-normative expression of gender, such as provisions criminalizing cross-dressing, as exists in Guyana, for example, where there was a series of crackdowns against male-to-female transgender persons for cross-dressing in February of this year. In some countries, despite national and international campaigns on non-discrimination on the basis of sexual orientation, gender identity and expression by human rights activists, further legislatures and laws are being introduced to criminalize non-normative behaviors and identities.
As human rights activists have witnessed in the recent years, these provisions have constituted the pretext for any form of human rights violation based on individuals real or perceived sexual orientation and gender identity or expression, such as arbitrary arrests, police abuses, infringement of the right to fair trial, limitation to the right to freedom of association and assembly, inhuman and degrading treatment, among others. Such laws have been proven to negatively impact HIV/AIDS education and prevention.
Crackdowns against individuals, human rights activists or civil society organizations in several Commonwealth countries further raise concerns in terms of respect of individuals’ human rights and freedom of association, regardless of sexual orientation, gender identity and expression.
What do you think the role of the Commonwealth should be in ensuring that fundamental human rights of every individual are protected and to redress a sensitive issue that, for historical reasons, mostly affects Commonwealth countries?
Category : Human Rights, homepage items
Tags: Commonwealth, gay rights, Human Rights, India, LGBT
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September 20th, 2009 at 2:58 am
I dont think so, even if it is one of the proposal during the CHOGMs, dont forget that CHOGM resolutions are adopted by consensus. Let people rule their country the way they want to.
September 20th, 2009 at 8:26 pm
Human Rights Violations cannot be justified under the excuse of tradition or religious beliefs. ‘Let the people rule their country the way they want to’ only pushes for the status quo, for the oppression of marginalised groups, for the justification of violence against some of those very same people. LGBT people have families and friends. By hurting the LGBT person you are also hurting a wider section of society as well! The commonwealth should actively support and empower LGBT civil society movements, apart form addressing these issues with governments and country leaders…
September 21st, 2009 at 12:42 pm
Absolutely. LGBT people are also human being. They do deserve to have the same ditgnity and social status as other ordinary people in the society. They do have the same capacity and knowledge to contribute in our socity for example: Justice Michael Kirby, who is one of the High Court Justices in Australia (recently retired) has been the prominant figure in promoting and adovacating for human rights not only in the national level but also in the international level.
I do agree with what Mario mentioned ‘human rights violations cannot be justified under the excuse of tradition or religious beliefs’
the fundamental value of the Religion is to protect people from unjustices, not to subjuct them to inhuman and oppressive treatment.
the judgement of the High Court of India should be regarded as a classic example (although india has still lots to do in this area)specially considering the social structure of india where religion still plays a big role in terms of policy making.
criminaling the sexual acts between consenting adults of the same sex, gender identity and expression is not the solution of the issue rather doing so would put the LGBT people in a vulnerable situation as there are significant risks involved such as non-recognition of their basic rights, social stigmatisation, risks of HIV/AIDS (as criminalising their saxual activities on the other hand means LGBT people would be reluctant from disclosing their identities because of the fear of social stigma or criminal charges).
As one of the Cth’s principles is to upheld the inherent dignity of every human being, therefore this issue should be taken into account in the upcoming CHOGM and appropriate measures should be taken to protect their fundemental rights not only for their wellbeing but also for the greater wellbeing of our society.
September 21st, 2009 at 4:02 pm
I guess this issue reveals some of the inherent problems within the organisation. They is no real power to change the internal workings of each country. This is a really important issue that effects millions of Commonwealth citizens.. and is a fundamental human rights issue. But the secretary general or whoever is in charge cant say anything about it for fear of upsetting the repressive countries.
September 22nd, 2009 at 3:48 pm
Imran:
“Let people rule their country the way they want to”
So that goes for Zimbabwe and Fiji does it?
Where do you draw the line?
September 24th, 2009 at 10:00 am
I would say that the Commonwealth needs to draw up a multilateral treaty wherein they pledge to decriminalise all LGBT activities within a year of its signing.
The Colonial Homosexuality laws date from a period with an obsolete and unhelpful mindset. If we can get them halfway repealed with an agreement at the 2009 CHOGM then it’s a blow for human rights.
September 24th, 2009 at 11:11 am
RFLowings – I cant see this happening.
Although I thought India was years away from its recent legalisation. Sometimes surprises do happen.
September 24th, 2009 at 11:57 am
Some things will NEVER be accepted in MANY countries. Lets deal with that. because i support LGBT rights does not give me the authority to match to Pakistan, Yemen, Ghana, Malaysia and say this is what we believe and this is the measure of human rights. I think that is wrong. As wrong as having a Muslim cleric from Nigeria advocating for a sharia law in Canada and the entire commonwealth. Failing to accept nations individual preferences does not show tolerance for diversity. Our beliefs should be celebrated and accepted but not made universal. We need to accept that not everyone is as liberal as us and that is okay.
September 24th, 2009 at 6:56 pm
The problem here is that one runs into the matter of sovereignty versus individual liberty. Do we have the moral right to impose our values on other nations? There is no doubt that the attitudes of many countries are repugnant; with increased communication and rising levels of education it is hoped that a more understanding and tolerant viewpoint will gradually develop; attempting to enforce concepts that are alien to a particular culture is most likely doomed to failure, given the nature of the nations in question. One thing is perfectly clear: A large segment of society, both in the U.S. and abroad, still regards gay men and women (among various minorities) as second-class citizens ? or worse. That this wide-spread attitude exists even in this day and age is the salient point of my recently released biographical novel, Broken Saint. It is based on my forty-year friendship with a gay man, and chronicles his internal and external struggles as he battles for acceptance (of himself and by others). More information is available at http://www.eloquentbooks.com/BrokenSaint.html.
Mark Zamen, author
September 24th, 2009 at 9:44 pm
I would like to think that one of the Commonwealth’s shared principles is respect for human rights. National Sovereignty is an irrelevance where human rights are being legitimately violated.
‘Diversity’ applies on an individual level, not a national one. The Commonwealth has supported the idea that any Tom, Dick, or Harry can claim national sovereignty due to an inherited racial principle or somesuch tripe, an idea which has resulted in colossal instability over the last hundred years. One must note that the most stable, successful, and long-lasting states have been ones where different races and nationalities have been forced to live together, not elected to do so. Examples: The Hapsburg Empire, the Republic of Kazakhstan, and the United Kingdom of Great Britain and Northern Ireland.
A nation which claims an inherited Homophobic culture as a justification for discriminating between its citizens is a nation which has become irrelevant. If the Commonwealth can’t agree on simple issues of human rights (and this is something included in the UN charter as well) it should reconsider its fundamental principles.
I think it very interesting that Member States seem as incapable of repealing homophobic legislation as they are of maintaining Health, Education and Transport infrastructure. Get your act together, Commonwealth! Reach some consensus!
September 25th, 2009 at 11:51 am
This might sound ignorant but i was wondering if anyone can tell me if we have any support and/or champions for the LGBTI cause within the commonwealth structure?
September 25th, 2009 at 12:21 pm
I want to believe that the basis of having this open discussion forum is to ensure that above acknowledging that all human beings are born free and equal in the eyes of the law, as members of the common wealth promote and respect all human rights.
Working from that point i would like to process my reaction to institutionalized homophobia as a ground of separating and humiliating people with a different sexual orientation and or gender identity in order to intimidate their efforts of claiming EQUALITY and JUSTICE.
When we use any institution /system to condone and promote discrimination it becomes largely a socialized norm and therefore agreeable to members of the majority/or threatened community, which in turn increases the levels of immunity for violators of rights.
To speak of our cultures as an institution that denies the existence of fluid/various sexual and gender identity other than the ‘normalized’ heterosexuality is to uphold a false belief as all our different cultures have documented/undocumented evidence of the existence of queer identified persons,and as in the case in my country Kenya-they were individuals who possessed/or were believed to be a third spirit/a link between the living and the dead.(search the Kamba community)as an example.In addition the communities permitted same sex customary marriages (see kikuyu,kisii, communities)
Nevertheless,the question is not if we exist,its our rightful experience of life in diversified gender and sexual orientation and the extent to which our governments are willing to uphold our human dignity.
In my country,and i believe in most of the states that criminalize ‘unnatural acts against the order of nature’ the question of my rights to privacy is altered:to successfully prosecute any alleged homosexuality claims,there is dire need for the evidence to amount to proof beyond reasonable doubt!and how exactly is the state going to find me engaging in this acts if they are not breaking into my private space?refer to Victor Mukasa and Yvonne Oyoo vs the republic of uganda where the house of the claimants was raided in the search for evidence of being homosexuals/promoting homosexuality.
To gain access to such evidence, the police/ investigators result in appalling and humiliating strategies such as bursting open doors of suspected homosexuals(both in private homes and hotel rooms or social events), blackmailing suspects or coercing them for evidence.Most of this acts will amount to physical,emotional and sexual violence in the case where the victim trying to defend themselves.
Criminalizing the state of being of any human being is a dangerous attempt to classify persons as second class citizens and deny them of their inherent human rights,for the common wealth states objective to promote human rights and seek redress for violations,is hindered by the existence of this draconian laws that were actually inherited during colonialism,In addition, the struggle for democracy cannot certainly be conqured if all citizens of the state are not born equal and free before the law.
October 2nd, 2009 at 5:45 pm
Two thoughts:
\Let people rule their country the way they want to\ is old hat. The age of absolute national sovereignty is past, if it was ever so. In a globalised age, what one country does, e.g. environment, human rights abuses, letting disease run out of control, unregulated food safety, has effects across borders. Our humanity does not stop at our country’s borders, otherwise we wouldn’t be caring about famine in country X or political prisoners in country Y.
Governments will always prefer to cling to the notion of national sovereignty, but this doesn’t mean that concerned people should just give up and concede the point. Granted, on the international stage, there aren’t well-developed mechanisms for letting the concerns of a common humanity get through to the thick skulls of some governments. But to the extent that these governments want recognition and honour on the world stage, then we should leverage on that vainglorious desire to try to get the message through: that they should first stand judged by international public opinion and be held to higher standards of human rights. Keeping up a drumbeat through conversations such as this will have results down the road. Persuading more enlightened governments to apply peer pressure on less enlightened ones is the way to go.
My second thought is this: \Let people rule their country the way they want to\ is often the prescription for majoritarianism to ride roughshod over the rights of minorities within countries. Typically, you’d have a majority (or a dominant group claiming to be a majority) saying they speak for ALL the people in a country, then imposing their ideas on the minorities within their borders. \We are the people\ they will say, because \We are the majority\. This kind of thing is offensive to the very concept of human rights, which is that there are spheres for each individual which majoritarian blocs cannot intrude into and take away. But who will speak up for those minorities?
October 2nd, 2009 at 10:57 pm
In truth, the principle of national sovereignty functions as the defining principle of foreign non-intervention because it is the least worst system we have. The alternative is intervention everywhere, all the time. The politics of military force were a very different animal and their inefficacy on the modern stage was shown during the Cold War.
LGBT rights can only be granted by legislation. I would like to see a Commonwealth pledge at the 2009 CHOGM to legalise Homo/Bi/Transsexuality in 2010, with all member states as signatories. We need consensus, and consensus through discussion, not coercion.
October 3rd, 2009 at 5:08 pm
“The alternative is intervention everywhere, all the time.” Let’s pause for a moment and ask ourselves: What’s wrong with that?
It becomes obviously wrong only when we conceive of intervention in military terms. I would hardly argue for that. Military intervention is precisely the kind of coercive, destructive, trust-destroying “engagement” that most liberal-minded people would keep their distance from.
Intervention can take many other forms, from the softest, e.g. moral spotlighting, to others with some muscle, like economic sanctions.
Nor is it obvious that national sovereignty is the only possible way of ordering the world. The European Union is engaged in a huge experiment in building a new political order of multiple levels of cross-engagement among 27 countries that represents a turning away from the notion of absolute national sovereignty.
I agree with you about legislation, though I wouldn’t have said that they can “only be granted” by those means. Firstly, as New Delhi has showed, it can be achieved via the courts. Also, I would have used the word “secured” rather than “granted”. Rights after all are supposed to be inherent; they are not for legislatures to bestow or take away.
October 3rd, 2009 at 5:09 pm
As a Belizean LGBT rights Activists. i recognize that we are struggling with reconciling science, religious positions and moral think. The world seems to be the same. People recognize that Politicians dont care about who sleeps with who. they care about votes. So if it means spewing out hateful homophobic language they will do it. Hitler spewed out hate, Rwandan leaders spewed hate, Jamaicans spews hate etc etc. This my friends brings me to the point. We must push hard for loud diplomacy where possible and push even harder for quiet diplomacy where it requires it. We must be smart at all times.Otherwise, we will perpetuate the very thing we are concern about if we remain silent and do nothing.
October 15th, 2009 at 4:56 pm
homosexuality will be punished by death, according to a new bill tabled in Parliament yesterday(14/10/2009)
The bill further states that anybody who ?attempts to commit the offence? is liable to imprisonment for seven years.
?The same applies to anybody who ?aids, abets, counsels or procures another to engage in acts of homosexuality? or anybody who keeps a house or room for the purpose of homosexuality.
The bill also proposes stiff sentences for people promoting homosexuality.
They risk a fine of sh100m(50,000 dollars) or prison sentences of five to seven years. A person charged with the offense will also have to undergo a mandatory medical examination to ascertain his or her HIV status.
http://newvision.co.ug/D/8/12/697859697859
October 15th, 2009 at 9:35 pm
It is definitely a difficult subject deal with, but at the very least we have started a dialogue. The fact that homosexual “acts” are still a crime in so many of our nations really needs to be addressed immediately. We need to move forward. In so many other ways our governments have worked so hard to distance themselves from our colonial past, so why keep an archaic law? Perhaps because it is convenient? Or in accordance to their religious teachings? Perhaps a combination of both!?
I acknowledge that we are all influenced by our past and that it makes us who we are (inset cliche melting pot image here), but really! I am in a lesbian relationship with someone from outside of the commonwealth, and our biggest problem lies in being able to live in the same country. It is truly unfair that LGBT people have to make choices between our relationships and our home countries! I realize that I am jumping a few steps ahead of the issue at hand, but this situation is really terrible.
As for the role of the Commonwealth, each nation is going to be a case by case basis. Perhaps if arguments for decriminalizing homosexuality are presented in a common sense way, it will be more obvious to all nations that something must be done!
For the Caribbean region, I am hoping that we can get Jamaican performers to tone down the anti-gay nature of their songs. Many Caribbean musical acts look up to Jamaican music and often emulate what they see and hear. Perhaps this would help the cycle of hate, at least for the future. Jamaica isn’t entirely to blame however, but I think it would help!!
I suppose, above all I am hopeful that things will change soon…