Protection of Sexual Minorities since Stonewall

Progress and Stalemate in Developed and Developing Countries

Phil C.W. Chan

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781317997108
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The Stonewall Riot in New York in 1969 marked the birth of the sexual minority rights movement worldwide. In the subsequent four decades, equality and related rights on grounds of sexual orientation and gender identity have been enshrined in many African, Asian, Australasian, European and North American countries, thanks to better informed discourses of the natures of sexual orientation, gender identity, equality and rights that systematic scientific and socio-legal research has generated.

Discrimination, harassment and persecution on grounds of a person's sexual orientation or gender identity, however, continue to pervade the laws and social norms in all developed and developing countries. In tribute to the courage of those who participated in the Stonewall Riot, this book examines the progress and stalemate in various countries on five continents, as well as in the development of international law, concerning the rights of persons belonging to sexual minorities. This book covers issues including homophobic bullying and gay–straight alliances in schools; the merits and problems that legislation prohibiting hate speech on grounds of sexual orientation presents; criminal justice systems in relation to male rape victims and to criminalisation of HIV exposure and transmission; the development of sexual minority rights, from historical and socio-legal perspectives, in Hong Kong, Japan, Singapore, and Zimbabwe; the lives of transgender persons in Asian countries; the evolution, operation and impact of international and domestic refugee laws on sexual orientation and gender identity as grounds for refugee status and asylum; and the conflicts between law, religion and sexual minority equality rights that inhere in the same-sex marriage debate in Ireland.

This book was previously published as a special double issue of The International Journal of Human Rights.

Protection of sexual minorities since Stonewall: their lives, struggles, sufferings, love, and hope

Phil C. W. Chan

Faculty of Law, National University of Singapore, Singapore

THEY CAME FIRST for the Communists,
and I didn't speak up because I wasn't a Communist.

THEN THEY CAME for the Jews,
and I didn't speak up because I wasn't a Jew.

THEN THEY CAME for the trade unionists,
and I didn't speak up because I wasn't a trade unionist.

THEN THEY CAME for the Catholics,
and I didn't speak up because I was a Protestant.

THEN THEY CAME for me,
and by that time no one was left to speak up.¹

— Martin Niemöller

Solidarity is not discovered by reflection but created. It is created by increasing our sensitivity to the particular details of the pain and humiliation of other, unfamiliar sorts of people. Such increased sensitivity makes it more difficult to marginalise people different from ourselves by thinking ‘They do not feel as we would’, or ‘There must always be suffering, so why not let them suffer?’. This process of coming to see other human beings as ‘one of us’ rather than as ‘them’ is a matter of detailed description of what unfamiliar people are like and of redescription of what we ourselves are like.²

— Richard Rorty

The horrors ofWorld War II profoundly changed the mindset of governments and citizens around the world regarding the nature, causes, and consequences of discrimination, oppression and persecution of persons belonging to minority groups due to particular personal characteristics or fundamental personal convictions, and led to the advent and progressive development of international human rights law. In 1948, the United Nations General Assembly proclaimed the Universal Declaration of Human Rights³ which has since been regarded as reflecting norms of customary international law binding on all States.⁴ In the Declaration, States agreed by consensus that ‘[a]ll human beings are born free and equal in dignity and right. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’⁵ However, amid the jubilation accompanying international human rights law, the struggles, sufferings, tortures, and executions of persons belonging to sexual minorities — gay men, lesbians, bisexuals, and transgender persons — in countries around the world have continued unabated.⁶

It was the patrons of Stonewall, a gay bar, who amid a climate of hostility and intolerance decided to stand up for themselves with courage through what are now known as the Stonewall Riots, thereby setting off the global sexual minority rights movement. Sexual minorities began to assert their collective and individual right to live their lives in safety, in peace, in dignity, and in full. A series of legal and social reforms ensued, such as the decriminalisation of consensual male/male sexual activity in England and Wales in 1967 and in Canada in 1969, the de-pathologisation of homosexuality as a mental disorder by the American Psychiatric Association in 1973,⁷ the legal reform efforts initiated by Harvey Milk and George Moscone protecting persons belonging to sexual minorities in San Francisco against discrimination and the increased awareness of the plight and rights of sexual minorities within the general American public during their office and after their assassinations,⁸ and the 1981 landmark decision of the European Court of Human Rights in Dudgeon v. United Kingdom⁹ that recognised the right of persons belonging to sexual minorities to privacy in their family and sexual life, a decision that continues to influence sexual minority rights development around the world, including in Hong Kong¹⁰ and the United States.¹¹

As with all rights movements, the sexual minority rights movement has endured its highs and lows. Sexual minorities found themselves as scapegoats with the onset of the HIV epidemic in the 1980s when medical understanding of the epidemic was still insufficient and uncertain. Through the United States Supreme Court decision in Bowers v. Hardwick¹² and the purported Colorado state constitutional amendment that, if it had been allowed to stand, would have had Colorado prohibit protection of sexual minorities and their minority status,¹³ a message was renewed time and again during the 1980s and early 1990s that sexual minorities were not part of society and must not be allowed the room to assert or to have their human rights. Under the Thatcher government Parliament in the United Kingdom passed legislation that until its repeal in 2000 in Scotland and in 2003 in England and Wales forbade the teaching in schools of homosexuality as a ‘pretended family relationship’.¹⁴ As Ann Hartman has stated, ‘[t]here is no better way to subjugate human beings than to silence them. There is nothing more oppressive than denying another's reality.’¹⁵

Nevertheless, since the early 1990s the sexual minority rights movement resurfaced with resilience and vigour. In 1994, the United Nations Human Rights Committee in Toonen v. Australia¹⁶ came to the view that criminalisation of consensual same-sex sexual activity violated a person's right to privacy and that ‘sex’ in the equality and nondiscrimination guarantees of the International Covenant on Civil and Political Rights must be taken as encompassing sexual orientation.¹⁷ A series of national court decisions around the world and opinions of international human rights bodies recognising a person's right of equality and other human rights regardless of sexual orientation or gender identity ensued.¹⁸ Legal reforms celebrating the fundamental rights and freedoms of persons belonging to sexual minorities have by no means been confined to countries in Australasia, Europe, and North America. After decades-long apartheid, South Africa promulgated the first national constitution in the world in 1996 that expressly protects against sexual orientation discrimination, in such terms that ‘[t]he state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.’¹⁹ The Constitution also requires that private individuals respect and uphold the principle of equality of all and mandates enactment of national anti-discrimination legislation.²⁰ In addition, the Constitution affirms unequivocally that ‘[e]veryone has inherent dignity and the right to have their dignity respected and protected.’²¹ As part and parcel of the general right of equality and inherent dignity of aperson regardless of sexual orientation, a number of countries have embraced the right of a person to marry another person of the same sex.²²

However, amid these successes the vast majority of persons belonging to sexual minorities continue to remain invisible and to live in fear and under conditions of discrimination, harassment, oppression and persecution as hetero-normative society and governments around the world continue to refuse to accept them as equal human beings entitled to equal rights and dignity. It is therefore important that when one conducts research or policy reviews on protection or otherwise of sexual minorities, persons belonging to sexual minorities are seen, heard and understood as human beings and not as some abstract notion of academic discourse. As A. Beiden Fields and Wolf-Dieter Narr have pointed out, ‘[i]f people are not aware of the historical and contextual nature of human rights and not aware that human rights become realized only by the struggles of real people experiencing real instances of domination, then human rights are all too easily used as symbolic legiti-mizers for instruments of that very domination.’²³ It is only through deep and genuine understanding that true discernment of the lives, struggles and sufferings of persons belonging to sexual minorities can be had and true progress of sexual minority protection and general human rights and equality achieved.

At the same time, there remains a fundamental and invidious invisibility of minorities within sexual minorities. In the midst of battles for general recognition of sexual minority rights as equal human rights, and behind the frontlines of more publicly visible issues such as same-sex marriage, an array of issues that affect the lives of particular groups of persons belonging to sexual minorities in peculiar ways remain fundamentally neglected, not only by society and the state, but also by many scholars and advocates of human rights and sexual minority rights. Practices and discourses of human rights and sexual minority rights continue to suffer stratification on the basis of the perceived importance of issues. Invariably, these minorities within minorities consist of the most disadvantaged and disempowered groups in society, including children and adolescents, sexual abuse victims, people living with HIV, and refugees.

I am therefore very honoured and pleased to edit and introduce this special double issue on behalf of The International Journal of Human Rights at the 40th anniversary of the Stonewall Riots, which explores and examines, from multifaceted lenses and perspectives, the current state and continuing implications of protection or otherwise of persons belonging to sexual minorities in various developed and developing countries on five continents, and which highlights many of the neglected issues in the current practices and discourses of sexual minority protection and oppression. This special double issue includes the insightful contributions of many fine and dedicated scholars in their respective fields without whose efforts it could not have materialised.

We begin with a discussion of the most fundamental sexual orientation-related issue affecting children and adolescents, that is, homophobic bullying in schools. As Phil C.W Chan points out in ‘Psychosocial implications of homophobic bullying in schools: a review and directions for legal research and the legal process’, homophobic school bullying, with which school bullying not attributable to sexual orientation is always intertwined, is a universal problem affecting children and adolescents of all ages around the world. Through a systematic review of the extant research literature in medical sciences, educational studies and social sciences, Chan examines the nature, likelihood, causes, onset, course, consequences, resolution and prevention of school bullying and addresses the added implications of homophobia with the role of family taken into account. Despite the tremendous harm school bullying generally and homophobic school bullying in particular causes, school authorities, parents, and society typically deny its occurrence and impact. Their denial of the struggles and sufferings of innumerable children and adolescents and their right ‘to form relationships of trust, meaning, and affection with people in their daily lives and their broader communities’²⁴ is continually reinforced, perpetuated and exacerbated by the responses, or the lack thereof, of the legal system as reflected by the paucity of legal research on the problem. A thorough understanding of relevant empirical research, and of the real lives of all children and adolescents, is essential in exploring how the law, including international law, and those professing the law may redress, deter and prevent school bullying, including homophobic school bullying, and some directions as to how these roles should be explored through legal research and the legal process are suggested by the author.

In undermining the rights of persons belonging to sexual minorities, very often silence speaks louder than action, and heterosexuals need not necessarily be the enemy. In ‘Fighting to fit in: gay-straight alliances in schools under United St...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Notes on contributors
• Foreword
• Preface
• 1 Protection of sexual minorities since Stonewall: their lives, struggles, sufferings, love, and hope
• 2 Psychosocial implications of homophobic bullying in schools: a review and directions for legal research and the legal process
• 3 Fighting to fit in: gay—straight alliances in schools under United States jurisprudence
• 4 Cumulative jurisprudence and human rights: the example of sexual minorities and hate speech
• 5 Challenging hate speech: incitement to hatred on grounds of sexual orientation in England, Wales and Northern Ireland
• 6 Gay male rape victims: law enforcement, social attitudes and barriers to recognition
• 7 Criminal law, public health, and governance of HIV exposure and transmission
• 8 Shared values of Singapore: sexual minority rights as Singaporean value
• 9 Keeping up with (which) Joneses: a critique of constitutional comparativism in Hong Kong and its implications for rights development
• 10 Sexual minorities and human rights in Japan: an historical perspective
• 11 Blackmail in Zimbabwe: troubling narratives of sexuality and human rights
• 12 Lost in transition: transpeople, transprejudice and pathology in Asia
• 13 From discretion to disbelief: recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom
• 14 Bisexuals need not apply: a comparative appraisal of refugee law and policy in Canada, the United States, and Australia
• 15 Independent human rights documentation and sexual minorities: an ongoing challenge for the Canadian refugee determination process
• 16 Same-sex marriage and the Irish Constitution
• Index