The unhappy marriage of traditional values and the regulation of same-sex love

We are pleased to welcome this guest post from Aengus Carroll. Aengus is co-author of State-Sponsored Homophobia: A World Survey of Laws: criminalisation, protection and recognition of same-sex love 2015 (report and world map) published by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), which has a membership of 1,100 LGBTI organisations worldwide. This 10th edition will be launched at the Palais de Nations in Geneva on 13th May 2015. He is also a current PhD candidate in international human rights law at University College Cork.

The question with which Professor de Londras titled her recent blog post concerning whether marriage equality in Ireland is about human rights echoes a much larger question playing out at the United Nations under the banner of the ‘traditional values of humankind’, about whether sexual orientation and gender identity (SOGI) issues are human rights concerns at all. The content and contexts of the current debates in Ireland and those going on at the UN are not really comparable on many levels, but what is similar to both is how idealistic visions of tradition are given primacy over lived realities.

The UN Human Rights Council (HRC) is the progenitor of human rights standards in the United Nations system and beyond. In this forum, arguments long found in reproductive rights and women’s rights contexts regarding universality and cultural relativism inform the SOGI dialogues. This decades-old argument about the interaction of religious or cultural values, the maintenance of certain public moralities and practices (child marriage, female genital mutilation and so on) and the universality of human rights inheres the debate, and has led some States to adamantly refuse SOGI a cognisable status in the mandate of the Human Rights Council.

These States often view diversity in SOGI as deviant, perverse, sick, or evil, echoed albeit more mildly (but I would argue as dangerously to the mental and emotional health of LGBT people) in Ireland where documents such as a Pastoral Letter of 1995 issued by [then] Cardinal Ratzinger, later Pope Benedict 16, speak of the “legalization of evil” and “the fact that homosexual acts are intrinsically disordered” – notions that have not yet been rescinded by the Vatican. All of these States and organisations share a common rhetoric – they are not homophobic in any way, and to treat difference differently is not inequality.

The arguments to support this position, which echo those currently in Ireland around the marriage debate, fundamentally rest on the idea expressed in Resolution 16/3 that States are respecting “the important role of family, community, society and educational institutions in upholding and transmitting these values, …”. As the Association for Women in Development (AWID) noted “It [traditional values] sounds innocuous, but its implications are ominous. Indeed, it is an immediate threat to the rights of many vulnerable groups – including women and lesbian, gay, bi-sexual and transgender (LGBT) people. And it flies in the face of the founding principles of universality and indivisibility enshrined in the Universal Declaration of Human Rights”.

Be that as it may, to date, two UN Resolutions in 2011 and 2014 at the Human Rights Council (HRC) explicitly recognise the link between human rights and SOGI, both expressing “grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity”, and both calling for follow-on reports to be delivered to the HRC on the issue. However, between 2009 and 2013, four UN resolutions with three Advisory Committee draft reports on the ‘traditional values of humankind’ have revealed a body of fears and interests inhering the sovereign, religious, indigenous or politically conservative agendas that shape public policy, and particularly the contested exclusion embedded in States’ regard to what legally constitutes ‘family’.

The fierce resistance to the 2011 and 2014 SOGI resolutions by over a third of UN Member States, (including the 57 Organisation of Islamic Conference (OIC) grouping of UN Member States, and the Vatican which has observer status at the UN) found form in 2012 when Pakistan led a noisy walkout from the follow-on report discussion. This was the first time such a dramatic gesture was employed in UN fora, and it goes straight to the heart of how the very meaning and content of human rights should be determined. Much like the canard proffered by the ‘No’ camp in Ireland that marriage is somehow being ‘redefined’ in the Constitution (where no such definition has in fact ever existed), Pakistan and others claimed that “… attempts to create…” “…. new standards…” regarding SOGI “… seriously jeopardise the entire international human rights framework”. In both cases, the maintenance of particular understandings of the values embedded in tradition are being elevated, and both disregard the burden that LGBT citizens with their families are forced to bear under that tradition.

It is debatable whether marriage equality represents the dizzying heights of social inclusion that some sections of LGBT activism might wish for. In this there is particularly Western ‘progress narrative’ that gains have come incrementally – indeed that gains should come incrementally – a timeline from decriminalisation, to non-discrimination in employment, to civil partnership and to culminate in marriage equality. This narrative poses a real danger of masking the more awful effects of discrimination and disadvantage which so many LGBT people young and old continue in. Questions arise as to what possible relevance could marriage have to a trans sex worker or a homeless migrant gay kid, and an intersectional analysis will quickly demonstrate the narrowness and privilege embedded in the ‘progress’ model.

It is clear that in countries like Uganda, such a progress model will likely never develop as it has in the West, as the hostile environment their pre-emptive laws creates results in an invisibility and fear that impedes community cohesion, ally-building and where LGBT people are targets of homophobia by State and non-State actors alike. Further, rejection of the ‘progress narrative’ model towards same-sex marriage directly informs the draconian Same-Sex Marriage (Prohibition) Act 2014 introduced in Nigeria. Similar logic about instilling time-worn moral values in young people informed the alarming 2013 Russian federal law essentially curbing public discussion on SOGI, and in the debates leading to their 2014 law, Lithuanian same-sex families were spoken about in terms of representing the “cradle of decay” that modern Europe represents.

Likewise in Ireland, albeit somewhat milder in tone but very much in the same vein, detractors from equal access to marriage echo many of the classic conservative arguments of the breakdown of society. The idea that every child “deserves” a mother and a father almost verbatim recalls the cries of US evangelist Anita Bryant’s Save Our Children, founded in 1977. This is commentary which some people recognise and feel as being intrinsically “homophobic” – despite proponents’ vociferous denials that this is not their intent and is therefore not fair. It appears that these ‘No’ advocates continue to disregard the recent legislation that makes their arguments legally moot. I note here how painful it is for LGBT people to hear the Orwellian logic that those who would restrict full equality of others claim victimhood for purporting their deeply held convictions – a phenomenon that extends much further that Ireland.

The US Supreme Court oral hearings on marriage equality in four US states in Obergfell v Hodges (linked with Tanco v. HaslamDeBoer v. Snyder and Bourke v. Beshear), heard on 28 April 2015, gave an international audience a rare opportunity to examine the rationales presented for and against a constitutional protection on same-sex marriage. Like Ireland’s, and unlike those of many countries at the UN, the counter-arguments appear relatively subtle in how they mask an exclusive and unjust idealism of family forms that render LGBT people and their families as second-class citizens.

The unhappy marriage of traditional values and the regulation of same-sex love

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