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Are LGBT rights human rights? A queer perspective.

In this paper, I will argue that the framing of LGBT rights as human rights should be assessed on two different levels. Precisely I will argue that the use of human rights as an instrument to promote LGBT rights has positive effects in leading the fight against gender discrimination at the international level, often pushing states in conforming to guidelines coming from organizations such as the UN and in particular the EU. However, I will also argue that to frame LGBT rights as human rights and to make rights-based claims may lead to a conformity and normativity which fail in representing the fluid characteristic of gender and sexuality, and thus to frame the battle of LGBT rights as human rights can be problematic and exclusionary. In order to do that I will first reconstruct briefly the history of LGBT movements. Secondly, I will explore the debate around the different schools of thought in order to show the institutional path that has led LGBT rights to be recognized internationally. Thirdly, I will focus on the consequences that this framing may have in justifying intervention by imperialist nations, and to the related critique of queer theorists around the framing of LGBT rights as human rights. Finally, I will argue that on the one hand the ‘internationalization’ of LGBT demands, through international organizations, has certainly brought more attention to the issue of gender inequalities and discrimination all over the world, and thus it represents the best available instrument to advance LGBT rights in the modern globalized world. On the other hand, to frame those rights as human rights may end up playing against the historical goal of liberation movements and LGBT advocates, thus ending up by making sexuality something ‘normative’ and therefore to reproduce the systematic hierarchies without entailing a broader cultural transformation aimed at educating to diversity. A more comprehensive emancipatory strategy able at transforming the idea of knowledge around gender seems fundamental to fight discrimination on every ground but in particular on the ground of culture.

Movements fighting for de-criminalization of homosexual ‘behaviours’ were already present in the 1900s. With the rise of Fascism and Nazism in Europe, however, they disappeared to come back in the early after the war of WWII. Western societies started slowly to decriminalize homosexual behaviors for particular categories of citizens (Kollman and Waites, 2009). In fact, in the early 60s, they were responding in different ways to the necessity to deal with the ‘social problem’ of same-sex acts through a utilitarian vision. The Wolfenden Report (Uk Government, 1957) in the UK, for example, is a report that called for the partial decriminalization of homosexual acts for men over 21. However, it vaguely referred to concepts such as freedom of choice or privacy, without entailing any reference to human rights, showing the mainstream utilitarian framework that understood homosexuality and LGBT rights neither as human nor as civil rights, but as a problem to ‘manage’.

Slowly gay movements moved away from a perspective of ‘liberation’ in which their rights were considered as collective and started to frame them as ‘civil rights’ because the appeal to human rights was seen problematic for the history of the LGBT movement, which aimed at refusing the patriarchal heterosexist institutionalized vision of gender and sexuality.  As argued by Butler (2005) the notion of LGBT rights as human rights is somehow problematic as it is rooted in international treaties characterized by the absence of LGBT concerns in the making of the category of ‘human’ and in imagining relative rights, thus still building on the same restricted understanding of gender and sexuality.

If the concept of human rights was not particularly used before the 70s, this became widespread in the 90s, when the EU and to some degree the UN slowly became the vehicle for the inclusion of LGBT rights as human rights (see Holzhacker, 2014). This framework would have helped the LGBT community in making progress on the condition of LGBT people in Europe and in the world, becoming the potential tool to use human rights as a vehicle for LGBT recognition.

With the Declaration of Montreal (Declarationofmontreal.org, 2006) the LGBT community further engaged in this fight, demanding no discrimination, protection against violence, freedom of association and expression, freedom to engage, the right of asylum for those suffering persecution, and many other demands to international organizations, as the Human Rights Council of the UN to introduce in their work the systematic understanding of LGBT rights as human rights.  In the same year, the Yogyakarta Principles were developed by a panel of experts in international human rights, locating the source of LGBT rights as human rights in the same existent law. This practical attitude, different from the proposal of the Declaration of Montreal which aimed at revolutionizing humanitarian law, seemed to be more efficient as it reports a series of principles which are meant to apply to the existing humanitarian law but, at the same time, it had to compromise in order to be consistent with the humanitarian laws already in place (O’Flaherty and Fisher, 2008, p.236).

2011 Capital Pride Parade – Dupont Circle – Washington, DC

As Swiebel (2009) argues the principles expressed, in particular, the Yogyakarta principles, were developed on the assumption that gender identities are fixed and immutable. This shows a Eurocentric attitude in defining what sexuality is, since it forgets about those who in the ‘Global South’ see same-sex relationships outside the lenses of LGBT categories, thus resulting exclusionary and opening the space for new ‘fixed’ categories to be imposed and made universal, while potentially excluding those who do not fit under the LGBT umbrella.

In the light of this debate, many academics warn about the framing of LGBT rights as human rights. Since humanitarian law belongs to a western Eurocentric narrative or version of what humanity is, it is important to be aware of the possibility that human rights are used selectively to serve imperialist interests. As argued by Kollman and Waites (2009), the selective invocation of human rights by some western governments (in particular the US and the UK) is evident in the debate around interventions, especially in Iraq and Afghanistan and as a consequence, one risk with the incorporation of LGBT rights as human rights is that it can lose meaning, especially in the global south, when used as a justification to serve imperialist goals and thus we need to frame human rights as something that changes with time, that is open to debate. If we do not want to limit gender and sexuality to a few categories, we need to recognize the diversity within communities and part of the world, and thus we cannot see LGBT rights as something fixed imposed by international organizations. If the lobbying of this activist groups with the UN and in particular the EU (see Swiebel, 2009; Helfer and Voeten, 2014) seem to have benefited and created a sort of ‘spill-over’ effect, however, in some countries such as Italy and Greece, the implementation has proved more difficult due to cultural reasons. Nonetheless, the fact that LGBT rights are implemented in some of these countries in particular, but also around the world, means to make the fight for LGBT people strategic in the foreign policy of the country.

Both the Eurocentric understanding of gender and sexuality and the sensitive issue of foreign policy open a huge question. How can we foster those rights without falling into the same normative trap that LGBT groups are trying to fight today? How can we combine the necessity of making concrete progress in advocating those rights with the moral imperative of making sure that a new pre-established and categorized vision of gender and sexuality will not end up on the long-term reproducing a static and oppressive set of identities?

A good response to this dilemma is ‘education to diversity’ proposed by the Queer theory as it creates a framework open to being revisited and to adapt with time. Theorists such as Jagose (1996) and Waites (2009) have underlined how gay liberation movements have always framed their fight for liberation through claims of equality and freedom because they did not believe that an alternative narrative of gender and sexuality could be achieved by the same international structure that has developed through moral and ethical rules which have not seen different identities included. As argued by Stain (2012) to be queer means to fight the binary conception of gender and to fight what is normative, thus heteronormativity in the first place.  The ‘indefinability’ of Queer is a peculiar characteristic of the theory, as it refuses the concept of identity and offers a framework of indefinability which serves the goal of de-constructing what is normative and educates at complexity and diversity.  What it follows, however, is a natural incompatibility between the queer theory and the idea of Human Rights as a set of ‘immutable’ rights, which in turns could institutionalize normative practices oppressing those who do not want to fit into one particular gender or sexuality.

Waites (2009) shows the assumption of the international humanitarian law which traces back to predominant sociological views developed in the west, whereas Queer theories have their roots in the Anglo-American world; their validity as a theoretical framework to promote diversity outside of ‘the west versus south’ ground is demonstrated by the adoption of their flexible framework by different countries in the ‘global south’.

The work of Ahmed (2006) criticizes the concept of sexual orientation by offering an understanding of sexuality that also concerns the way in which the social context interacts and shapes our sexuality. Furthermore, this conception warns about the understanding of sexuality as ‘orientation’ since it could include a process of subordination to the alternatives and categories given by the social context. The binaries models used also by international conventions are problematic as they tend to ignore a broader reality regarding sexuality and gender, and thus may end up by institutionalizing categories and identities that may eventually change or be challenged by different ones. Queer theories are relevant to this issue since they conceptualize sexual orientation and gender identity as something that even if being subjective it is always in motion and is characterized by fluidity.

Authors such as Kolmes and Witherspoon (2012) and Shelton and Delgado-Romero (2011) have studied the impact of microaggressions on individuals. They underlined how microaggressions related to sexual identification tend to exclude and de-humanize those categories which are not thought as ‘civilized’ or ‘human’ and thus, it is necessary to do more in order to challenge the heteronormative dominant narrative and to challenge the idea of sexual orientation. For this reason, Mertus (2007) argues that we should be fighting for ‘sexual rights as human rights’ because while there may not be agreement around the concept of identity, and thus of sexual orientation, it is easier to talk about behaviors instead of categories.

To conclude, even if it is evident that the concept of Human Rights itself has developed based on a specific cultural understanding of sexuality, as demonstrated also by the ‘homologation’ of gender complexities to the LGBT title, its framework represents today a relevant space to address gender issues in a way that can benefit the movement. However, to limit the issue of gender complexities to the institutional framework would be a mistake. The strategy must include a broader emancipatory attitude to fight heteronormativity and to transform the dominant idea of knowledge around gender, also through a postcolonial perspective (see McCormack, 2014). The simple fact that discrimination still occurs also in those countries that have intensively adopted policies to guarantee the same rights of heterosexual people to LGBT people, means that the fight to rewrite the social order from a feminist and queer perspective must be part of a broader strategy of counter-hegemony.

By Lorenzo Cortinovis

You can also find this research paper and more from Lorenzo here.

 

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