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Human Rights and Homo-Sectuals: the International Politics of Sexuality, Religion, and Law Jeffrey A Northwestern Journal of International Human Rights Volume 4 | Issue 3 Article 1 Spring 2006 Human Rights and Homo-sectuals: The International Politics of Sexuality, Religion, and Law Jeffrey A. Redding Follow this and additional works at: http://scholarlycommons.law.northwestern.edu/njihr Recommended Citation Jeffrey A. Redding, Human Rights and Homo-sectuals: The International Politics of Sexuality, Religion, and Law, 4 Nw. J. Int'l Hum. Rts. 436 (2006). http://scholarlycommons.law.northwestern.edu/njihr/vol4/iss3/1 This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Northwestern Journal of International Human Rights by an authorized administrator of Northwestern University School of Law Scholarly Commons. Copyright 2006 by Northwestern University School of Law Volume 4, Issue 3 (Spring 2006) Northwestern Journal of International Human Rights Human Rights and Homo-sectuals: The International Politics of Sexuality, Religion, and Law Jeffrey A. Redding* The issue of the case and the crimes it includes repeat what happened in the time of the Sodomites and the wrath that fell upon them. They created an unprecedented obscenity among human beings by having sexual intercourse with human and demon males, and ignoring the women God created. —Judge Hassan al-Sayes1 I was so scared that in the end I said, “I don’t know anything about contempt of religion, I am just gay.” —Murad2 * Legal Consultant, Lawyers Collective, Bombay, India; 2004-05, Assistant Professor of Political Science/Law, American University in Cairo; 2003-04, Fellow, Center for the Study of Law and Culture, Columbia Law School. There are many people and institutions who have contributed to this article, and my ability to find the time, place, and space to contemplate its many claims. First and foremost, I would like to thank the Center for the Study of Law and Culture at Columbia Law School, and especially its co-directors Katherine Franke and Kendall Thomas, for providing an extremely supportive home for the exploration of law’s many relationships to religion, sexuality, and culture. This article would not have been possible without the generous support, and wisdom, of this center and the people who make it happen. I would also like to thank especially the many people involved with Lawyers Collective, in both Delhi and Bombay, for the help they have provided me for many years now. Finally, for their several forms of assistance, guidance, critique, and inspiration - all of which have directly impacted this article - I would like to thank Sadia Abbas, Hossam Bahgat, Mary Anne Case, Glenn Cohen, Rodney Collins, Vivek Divan, Vikram Doctor, Elizabeth Emens, Aaron Frankel, Clark Gard, Anand Grover, Paul Gunataram, Alok Gupta, Zarine Habeeb, James Hathaway, Abbas Hyderi, Indira Jaising, Surina Khan, Scott Long, Alice Miller, Arvind Narrain, Victoria Neilson, Matthew Nelson, Martha Nussbaum, Jinah Paek, Chris Jones-Pauly, Ahmed Refky, Barbara Roberson, Zahir Riaz, Jeff Spinner-Halev, Andrew Sreniawski, Kristen Stilt, Damian White, Ali Faisal Zaidi, Auntie and Uncle, and Karin Zitzewitz. Emily Eidenier, in Cairo, provided excellent research assistance for this article, and also helpful editorial comment. Of course, I take full responsibility for all arguments and errors expressed in this article. This article is dedicated to Ellen Sapper, who first taught me irony, and who continues to make me laugh. 1 From his 2003 verdict in the retrial of 21 Egyptian men who had, in 2001, been found guilty of the “habitual practice of debauchery.” HUMAN RIGHTS WATCH, IN A TIME OF TORTURE: THE ASSAULT ON JUSTICE IN EGYPT’S CRACKDOWN ON HOMOSEXUAL CONDUCT 98 (Mar. 2004), available at http://hrw.org/reports/2004/egypt0304/. 2 Describing his reaction to his interrogation by Egyptian prosecutors during the 2001 “Queen Boat” scandal in Egypt. Id. at 36. Vol. 4:3] Jeffrey A. Redding I. INTRODUCTION ¶1 In April 2003, at the 59th Session of the United Nations Commission for Human Rights (UNCHR) in Geneva, Brazil unexpectedly introduced a resolution for consideration that called upon both the United Nations and state governments to incorporate protection from persecution and discrimination on the basis of “sexual orientation” into their human rights practices and procedures.3 While this was not the first time that the relationship between human rights and protection from persecution and discrimination on the basis of “sexual orientation” had been discussed at the UNCHR, it was indeed the first time that a resolution had been proposed with such wide ramifications for member states vis-à-vis the protection of (non-normative) sexual orientations.4 Earlier, while still controversial, the UNCHR had only considered, and passed, resolutions that worked to protect people from being extra-judicially, arbitrarily, and summarily executed based on their sexual orientation. 5 This time, however, far more than the right to kill people based on their sexual orientation was at stake for UN member states. ¶2 Not surprisingly, the Brazilian resolution did not pass and, indeed, an international coalition of states worked strenuously to either delay consideration of the proposal or to kill it outright. Prominent in this somewhat-motley coalition were Pakistan (on behalf of the Organization of the Islamic Conference), the Vatican, and Zimbabwe.6 While these states did not succeed in getting the resolution voted down, their opposition was instrumental in tabling full consideration of the Brazilian resolution until the UNCHR’s 60th session in 2004.7 At this 2004 session, the Brazilian resolution was again 3 The text of the U.N. Comm’n on Human Rights draft resolution, entitled, Human Rights and Sexual Orientation, E/CN.4/2003/L.92, can be found at Int’l Gay and Lesbian Human Rights Comm’n, Sexual Rights and Sexual Orientation at the United Nations Commission on Human Rights: Campaign Dossier (Draft) 17 (2005), available at http://www.iglhrc.org/files/iglhrc/UNCHR%20Action_Kit_2005.doc. This kind of (proposed) resolution is commonly referred to as a “soft resolution,” i.e. one which does not explicitly require any specific United Nations or state action, but instead – in this resolution’s own terms, for example – “expresses deep concern” about a given type of human rights violation, and then “calls upon,” “encourages,” and “requests” different parties to work to end this type of human rights violation. Id. at 7. 4 See generally Douglas Sanders, Human Rights and Sexual Orientation in International Law (Nov. 23, 2004), http://www.ai-lgbt.org/international.doc (discussing the history of “sexual orientation” discussions, reports, and debates in the United Nations system). See also Holning Lau, Sexual Orientation: Testing the Universality of International Human Rights Law, 71 U. CHI. L. REV. 1689 (2004). 5 See, e.g., U.N. Comm’n on Human Rights, Extrajudicial, Summary or Arbitrary Executions: Commission on Human Rights Resolution 2002/36, U.N. Doc. E/CN.4/2002/200 (Apr. 22, 2002), available at http://ap.ohchr.org/documents/E/CHR/resolutions/E-CN_4-RES-2002-36.doc. 6 See Int’l Gay and Lesbian Human Rights Comm’n, supra note 3, at 7-8, 14-15, for a narrative of the spirited discussions and events that transpired at the 2003 meeting of the UNCHR. Interestingly, and a matter which should raise some questions about how exact the expression “sexu al orientation” actually is, one of Pakistan’s objections (in 2004) to the Brazil resolution was that “[t]he concept of ‘sexual orientation’ has never been defined in the U.N. The list of sexual behaviour could always be expanded to include grossly errant behaviour like pedophilia.” Sanders, supra note 4, at 42 (excerpting a 2004 letter from Pakistan to other Organization of the Islamic Conference countries). See also Arvind Narrain, Brazil Resolution on Sexual Orientation: Challenges in Articulating a Sexual Rights Framework From the Viewpoint of the Global South 2 (2004) (unpublished manuscript, on file with author), for a discussion of how Sri Lanka’s representative at the 60th session of the UNCHR was also worried that “sexual orientation” could be taken to mean “pedophilia” or “adultery.” 7 See Int’l Gay and Lesbian Human Rights Comm’n, supra note 3, at 8. See also U.N. Comm’n on Human Rights, Postponement of Draft Resolution E/CN.4/2003/L.92 and the Proposed Amendments 437 NORTHWESTERN JOURNAL OF INTERNATIONAL HUMAN RIGHTS [ 2006 confronted with vocal opposition and a vote on the resolution’s substantive terms was put off for yet another year.8 At the 61st session in April 2005, the UNCHR again failed to discuss the resolution, and it has now completely fallen off of the UNCHR’s agenda, unless some state is brave enough in the future to affirmatively re-introduce the resolution for discussion. 9 ¶3 In consideration of the formidable opposition to the Brazilian resolution, and the very real possibility that it will not be revived in the foreseeable future, some important and urgent questions about future strategy and aims must now be posed. Considerable resources and effort have been invested in the struggle for the Brazilian resolution by some of the leading international gay and lesbian human rights organizations, including the International Gay and Lesbian Human Rights Commission, Amnesty International’s Outfront project, and Human Rights Watch’s Lesbian and Gay Rights project. While these resources and efforts have surely raised a great deal of international awareness of and collaboration on the problems that people with persecuted sexual orientations suffer, one must wonder if another course of action might generate these same benefits without the problems that come with the Brazilian resolution. Accordingly, now is the time to ask whether the Brazilian resolution (or any efforts like it) is the best way forward, and whether international human rights norms and practices (and resources) could be used more effectively to help protect the large numbers of those persons whose persecution is the ostensible target of the Brazilian resolution.
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