“Legal Progress on Gay Rights, but Homophobia Remains” by Sebastian Kohn

Reference: Open Society Foundations

May 17, 2011

The International Day against Homophobia is being celebrated—and no doubt hated—around the world on May 17. In 1998, Coretta Scott King said: “Homophobia is like racism and antisemitism and other forms of bigotry in that it seeks to dehumanize a large group of people, to deny their humanity, their dignity and personhood.” Over the last year we’ve seen striking progress in some parts of the world with respect to gay rights, but other places are lagging behind or getting worse.

On a positive note, the supreme court in Brazil recently ruled that gay persons in “stable relationships” will get the same rights as straight married couples in terms of taxation, inheritance, and benefits. Although stopping short of legalizing marriage for gay people, Justice Carlos Ayres Britto who wrote the decision stated: “The freedom to pursue one’s own sexuality is part of an individual’s freedom of expression.”

This is an interesting, and quite different approach from what we have seen in the past. Regional and international bodies have previously primarily relied on the right to privacy, rather than the right to freedom of expression.

In Toonen v. Australia, for instance, the UN Human Rights Committee concluded that criminalization of same-sex sexual relations violated Article 17 of the International Covenant on Civil and Political Rights. While the committee did not believe—wrongly in my opinion—that it was necessary to also consider if there had been a violation of Article 26 of the covenant, it did confirm that sexual orientation falls under the term “sex” in Articles 2 and 26 and is thus a protected status under the covenant.

In the United States, the “Don’t Ask, Don’t Tell” policy in the US military – which left in place a prohibition on openly gay, lesbian, or bisexual persons serving in the armed forces – was repealed, although implementation is moving slowly. Apparently US troops require special preparation training to deal with the repeal – something their counterparts in Canada, most of the EU, Israel, South Africa, Russia and Australia among others seem to manage just fine. The Obama administration also announced earlier this year that they would no longer defend section 3 of the 1996 Defense of Marriage Act, which prevents the federal government from recognizing the validtiy of same-sex marriages.

In the West, the right to marriage has been at the top of the agenda for many gay rights activists. And in many places we’ve seen amazing progress. In July 2010 the Senate in Argentina approved a gender neutral marriage law. In August 2010, Mexico’s Supreme Court ruled that while individual states do not need to grant same-sex marriages, they must all recognize those performed where they are legal. Stopping short of introducing same-sex marriages, the Irish parliament approved civil partnerships in July 2010 (effective since January 2011). In addition, adoption by gay parents has been legalized in several European and Latin American countries over the last few years.

Despite these positive steps, however, seven countries still apply the death penalty to homosexuals, and 76 countries around the world criminalize same-sex sexual relations. But even on this front, not all is gloomy. In 2010, Fiji decriminalized homosexual acts. And Sao Tome and Principe is considering abolishing the criminalization statute as of July 1, 2011. But at the same time, Uganda is still considering even harsher legislation against homosexuals—including the introduction of the death penalty—although parliament closed on May 13 without discussing the proposed bill.

Of course, homophobia is more than just legal inequality. I’ve said in the past that even big, liberal Western cities like London and New York have seen violence erupt against gay people recently. In Adelaide, Australia, gays and lesbians who were staging a mass wedding on May 14 in celebration of the International Day against Homophobia were attacked by the Christian Street Church.  In South Africa—which pioneered constitutional protections for homosexuals—authorities seem unable to deal with an epidemic of “corrective rape” against lesbians.

But it’s not all doom and gloom. More and more celebrities and role models are stepping out of the closet. In March 2011, Swedish footballer Anton Hysen became the second professional football player ever to come out (the last one was Justin Fashanu in 1990). And just a few days ago Rick Welts—the chief executive of the National Basketball Assocation’s Phoenix Suns—also announced he is gay. British rugby star Ben Cohen also recently announced that he will retire from rugby to focus on his Ben Cohen Stand Up Foundation which tackles homophobia and bullying.

While the record over the last year has been mixed, momentum seems to be gaining on gay rights. In recent conversations I’ve had with state missions to the UN in New York, a surprisingly large number quote LGBT rights as a priority, and countries like the UK and the US have recently taken a strong stance against the anti-gay policies in Uganda. But while there are plenty of things to celebrate, there is no reason to be content yet.