Human Rights, Sexual Orientation, and Gender Identity at the UN

 
 

One of the great achievements of the 20th century is the development of the universal human rights regime. But that regime teeters under the weight of new ideologies, and as it teeters it endangers not just gays and lesbians but everyone.

The UN General Assembly voted last week to include “gender identity” in its annual resolution condemning “summary execution and extra-judicial killing.” US Ambassador Susan Rice tweeted, “Fitting, on National Transgender Day of Remembrance, that UNGA acknowledges protections on the basis of gender identity.” And, “We will not allow the remarkable progress the UN has made on LGBT issues in the last four years to be rolled back.”

“Sexual orientation” had been included in the resolution for a few years but only with great controversy and opposition coming from a broad range of governments (and not just Muslims either). What’s new this year is the addition of “gender identity” to the formulation. Efforts to remove it lost 86-44, with 31 abstentions.

Why would there be any controversy at all? Does anyone really believe that homosexual and transgendered persons should be summarily executed because they are homosexual or transgendered, or for any other reason?

This debate is part of a long-time fight over homosexuality at many international institutions such as the UN and the Organization of American States. The battle began at the UN in the early 2000s when homosexual pressure groups began applying for official status with the UN Economic and Social Council, which gives groups permanent badges to the UN grounds and the ability to submit papers and other documents that are distributed via official UN channels. The UN NGO committee used to reject these groups because they refused to condemn pedophile groups such as the North American Man-Boy Love Association and they refused to acknowledge that freedom of religion trumps homosexual rights. Eventually, led by the Obama administration, the Economic and Social Committee began overruling the NGO committee.

The second and more important battle has been over language in UN documents. The first skirmishes were about how to define family. Here there seems to be a stalemate. The General Assembly has settled on phrases such as “various forms of the family.” This is a typical UN jump ball. The Germans can define it as including homosexuals, while Malta can see this as the nuclear and extended family.

Then there is the yearly debate in the Human Rights Commission—now the Human Rights Council—that has seen Brazil introduce resolutions calling for “sexual orientation and gender identity” (SOGI) to be new categories of non-discrimination in international law. This would place SOGI on the same level as more widely accepted though hardly universally enforced categories such as freedom of religion, political self-determination, freedom of the press, and others that are enumerated in the Universal Declaration of Human Rights and its two implementing treaties from 1966 (International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights).

The Brazilian efforts were defeated year after year, though proponents hardly retired from the field. The UN human rights apparatus—committees and special rapporteurs—decided that SOGI already exists in UN treaties, but they do not have the authority to make their opinions stick.

In the final months of the Bush administration, the French initiated a non-negotiated “statement” that was released at UN headquarters in New York. Signed by sixty-five countries, it called for SOGI to receive special human rights status. A counter statement was circulated by Egypt, and in a matter of days sixty countries signed. Urged by a large and highly organized pressure group of gays and lesbians in the State Department, the Bush Administration almost signed the French statement, but conservatives in the National Security Council and the White House scuttled it at the last minute.

The rhetoric used to gain support for the French statement demonstrates where the argument is now, and why the vote against changing the summary execution resolution lost last week in New York. The French and others said that their efforts were only about stopping violence against homosexual people and nothing more.

Sadly, in some parts of the world such violence exists. In some countries they do in fact kill people for being or acting gay. Or jail and torture them.

But when the Holy See offered to sign the French statement if it was limited to violence prevention, the French government refused to modify the statement. Thus the Holy See could not sign and the Catholic Church was accused of favoring the killing of gays and lesbians.

This example shows that this battle isn’t just about stopping violence. It’s about making SOGI an integral part of human rights law. The violence issue is a way to advance this effort and to paint its opponents as complicit in violence themselves.

Why oppose SOGI coming into human rights law?

First, the terms “sexual orientation” and “gender identity” are vague and ill-defined, and have come to encompass a whole range of morally problematic ideas, including same-sex marriage, adoption by gay and lesbian couples, and presenting the homosexual lifestyle positively to schoolchildren.

Though these intentions are not explicitly part of the push to make SOGI part of human rights law, language in human rights law tends to be twisted far beyond the meaning intended by the drafters and the countries that ratified them. The best example of this is that the “right to life” clause in human rights treaties is now interpreted by UN treaty-monitoring bodies as including a right to abortion. This would never have occurred to those countries that negotiated these treaties or the states that eventually ratified them.

What does “gender identity” mean? Perhaps there is a definition agreed to by the Queer Studies Departments of colleges across the country, but no acceptable definition is conceivable within the UN General Assembly. And even if members reached a generally agreed-upon definition today, the meaning would no doubt change by next year or even next week.

Second, experiences in the US and Europe show that whenever SOGI and religious freedom come into conflict, religious freedom tends to lose. Just ask the people who are losing their jobs in and out of government for voicing opposition to same-sex marriage. Just ask the pastors arrested and criminally prosecuted for preaching the Bible’s injunctions against homosexual acts.

But why oppose inclusion of SOGI in the GA resolution against summary execution and extrajudicial killing? After all, this proposal by its own terms is truly only about violence. The answer lies in the way human rights law is developed these days. It is a less-than- honest practice.

Once a phrase gets into any UN document, even a non-binding one, it becomes what is called “agreed upon language.” And “agreed upon language” is almost impossible to resist in future documents. Here it may refer only to violence, but eventually, at the hands of UN committees and lawyers, its meaning vastly expands. Even this tiny concession in a document about violence rapidly becomes an argument that the international community now agrees that SOGI is a part of international law.

This is the boot-strapping of human rights. Last year the Human Rights Council approved a study of violence against homosexual people. Proponents, including Hillary Clinton, hailed this vote as a great victory for universal human rights. It was only a vote about a study. In the same way, the French statement from 2008 is now routinely called a UN resolution. In fact, it was no more than a press release.

Opponents of any inclusion of SOGI in UN documents understand how this game is played. This is why there were forty-four votes against the amendment last week, and we can be sure the thirty-one abstentions were also votes against but were cowed into abstaining by an aggressive Obama administration.

The Obama Administration

Much of what has happened so quickly would not have happened without President Obama.

Within days of coming into office President Obama signed the US onto the French statement. The US directed all agencies that do business overseas to help advance LGBT rights. Even the State Department directed all US Embassies everywhere to identify and assist domestic LGBT movements. This led to an LGBT party in the US Embassy in Pakistan, something that angered everyone including, according to the New York Times, the Pakistan LGBT community.

A few years ago, Thomas Farr, the former Director of the Office of International Religious Freedom who worked for many years in the State Department, reported that the Obama State Department had folded LGBT rights into the US annual report on religious freedom—an utterly illogical, but tactically ideological, move. In fact, Farr pointed out that LGBT rights are now favored by the State Department Office of Religious Freedom over freedom of religion itself.

The US has aggressively twisted arms and made threats on various LGBT votes in the UN. One Jamaican diplomat told me her countrymen are aggressively opposed to homosexuality—did you know that many of those happy and free-wheeling reggae songs have explicit anti-homosexual lyrics? British censors recently discovered this and have been banning reggae bands from performing. The US successfully forced the Jamaican government to abstain on LGBT votes in the General Assembly.

Hillary Clinton is credited with coining the phrase “human rights are women’s rights—and women’s rights are human rights” at the Beijing Women’s Conference in 1995. What sounds like an underscoring of the universality of human rights is just the opposite: her formulation balkanizes them. She resurrected the formulation for the LGBT debate: “gay rights are human rights, and human rights are gay rights.”

This formulation is a major debasement of the human rights project as it ghettoizes human rights. If women and gays have human rights that the rest of us do not possess, then human rights lose their indivisibility and their universality.

International law’s subject is universal human rights—a subject broad enough that it is both illogical and unfair to supplement it with rights for specific categories of human beings. The dignity of homosexual and heterosexual persons alike is protected by the Universal Declaration of Human Rights and its implementing covenants. Homosexual persons, just like heterosexual persons, are also covered by the treaties on torture, genocide, and all the rest. What is needed is enforcement of existing treaties.

One of the great achievements of the largely sullied twentieth century is the development of the universal human rights regime. However, an already difficult regime teeters under the weight of new ideologies, and as it teeters, it endangers not only gays and lesbians but everyone.

Austin Ruse is president of C-FAM (Catholic Family & Human Rights Institute), a New York and Washington, DC-based research institute that focuses exclusively on international legal and social policy.

 

 

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