Getting Lesbian and Gay Issues on the International Human Rights Agenda
One of the remaining areas of discrimination which is yet to receive serious and detailed attention within the United Nations is that of sexual orientation. Australia recognises that discussion of the issue is bound to be difficult given the diversity of political, cultural and religious traditions which the international community is required to address. Nevertheless, consideration of this issue is long overdue. 2
The first openly homosexual person spoke in a UN human rights forum in August 1992, “amidst some open hostility to his remarks.” 3 The speaker noted that lesbian women and gay men were totally unrepresented in UN work and had no organizations with consultative status.
Organizations of lesbian women and gay men were first accredited to a UN meeting in 1993, the Vienna World Conference on Human Rights, where three organizations participated. The first lesbian and gay organization to gain consultative status with the Economic and Social Council was the International Lesbian and Gay Association (ILGA), approved by a roll-call vote in July 1993. Approval required that ECOSOC abandon its tradition of making such decisions by consensus. In September 1993, the [End Page 67] consultative status of ILGA was questioned by the United States. The problems seemed resolved in June 1994, but emerged again. At the initiative of the United States an ECOSOC meeting was hastily called in September 1994. ILGA was suspended, pending a review of its member organizations. In the history of the United Nations no other nongovernmental organization has been treated similarly.
At the time of this writing no initiatives to consider issues of discrimination against lesbian women and gay men are under consideration in the human rights organs of the United Nations. The suspension of the International Lesbian and Gay Association, which should prove temporary, supports the continuing avoidance of sexual orientation issues in the human rights work of the United Nations.
A. The Obstacles
What are the characteristics of lesbian women and gay men, collectively, which have kept them outside most international human rights work? There are related factors of (1) continuing stigma; (2) poor organization; and (3) the understanding that many states will block initiatives in this area.
1. In almost all parts of the world, lesbians and gay men remain highly stigmatized minorities. Criminal laws against homosexual acts are still common, though declining in number. While homophobia is increasingly compared to racism and sexism, discrimination against lesbian women and gay men is much more widely accepted than other forms of discrimination. 4 Religious objections continue to be cited to justify state sanctioned discrimination. While lesbian women and gay men are often perceived quite differently from each other, both groups are highly stigmatized. 5
2. Lesbian women and gay men lack effective organizations at the local, national, regional, and international levels. Of all minorities, lesbian women and gay men are perhaps the least likely to have effective organizations despite the large numbers of individuals involved.
a. The minority is dispersed among the larger population. In the west, in the postwar years, gay men and, to a lesser degree, lesbian women have achieved a visible societal presence in particular neighborhoods in the larger cities. [End Page 68]
b. Unlike cultural minorities and many racial minorities, lesbian women and gay men have no natural institutions such as churches or schools which could give an institutional base for minority leadership.
c. Support for lesbian and gay rights organizations runs counter to the dominant strategy employed by the majority of lesbian women and gay men, the strategy of passing as heterosexual in almost all social and work situations. No equivalent avoidance strategy is open to members of other minorities. 6
d. Well-placed lesbian and gay individuals, who could counter negative stereotypes, generally do not disclose their sexual orientation. Western media does not identify them as lesbian or gay, even when their sexual orientation is known. Nor does the media report public statements identifying them as lesbian or gay. 7
e. Heterosexually identified individuals are effectively discouraged from raising lesbian and gay issues because their own sexuality might be put in question. No similar problem exists for supporters of racial and cultural minorities.
3. It is widely understood that a significant number of States would block movement at the international level, often on religious grounds. States with Roman Catholic or Islamic majorities usually have difficulty with the issue. A Canadian representative recalled that “an older man from Kuwait almost fell off his chair” when Canada proposed adding “sexual orientation” to an equality provision in the drafting committee at the Vienna World Conference on Human Rights. Anti-Western rhetoric is also used to justify discrimination. Prime Minister Mahathir of Malaysia, speaking in the General Assembly, derided American-stye democracy for supporting the carrying of guns and the flaunting of homosexuality. 8 [End Page 69]
B. Changes in State Practice
Movement on lesbian and gay issues is becoming possible at the international level because of the widespread changes that are occurring in state practice. Change is most striking in the “north,” but evident now, as well, in many parts of the “south.”
In 1948 Kinsey’s study, Sexual Behavior in the Human Male, was published in the United States. Kinsey showed that male homosexuality was far more common than had been generally assumed: 37 percent of his sample of men reported sexual experiences with members of both sexes; 4 percent were exclusively homosexual during their entire life; 10 percent were more or less exclusively homosexual for at least three years between the ages of sixteen and fifty-five. 9 While other studies have put some of Kinsey’s figures in question, the study remains important in its presentation of homosexuality as a common variant condition, rather unremarkable if examined scientifically.
Criminal laws on homosexual acts existed in many jurisdictions, but not all. 10 Countries whose criminal law derived from the Napoleonic Code drew no distinction between homosexual and heterosexual acts. [End Page 70] As a result, some European states, even ones with Roman Catholic majorities like France and Spain, had no criminal provisions on homosexual activity. In others, reform occurred more recently. Decriminalization occurred in Denmark in 1930, in Poland in 1932, in Switzerland in 1942, and in Sweden in 1944.
In 1957 the Wolfenden Report was published in the United Kingdom, the product of an elite government appointed inquiry. The analysis was unscientific and the reasoning is now badly dated, but it gave respectability to campaigns to end criminal prohibitions of homosexual activity. The report drew a distinction between morality and criminality, describing homosexuality as a private moral issue. The Wolfenden Report largely set the terms of the ensuing debate on decriminalization in those Western states where homosexual acts were illegal. Reform arguments were bolstered when the influential American Law Institute prepared a Model Penal Code in 1962 which had equal provisions for homosexual and heterosexual acts.
Since the 1960s, many major states have decriminalized adult homosexual activity. For example:
1961: Illinois, Hungary, Czechoslovakia
1967: England and Wales
1968: Bulgaria, German Democratic Republic
1969: Canada, Federal Republic of Germany
1971: Finland, Austria
1972: Norway, South Australia
1976: Australian Capital Territory
1977: Four republics and autonomous provinces in Yugoslavia 11
1980: Scotland, Victoria (Australia)
1982: Northern Ireland
1983: Northern Territory (Australia), Guernsey
1984: Cuba, New South Wales
1986: New Zealand
1989: Western Australia, Liechtenstein
1990: Queensland, Jersey
1991: Ukraine, Hong Kong
1992: Latvia, Estonia, Gibraltar, Isle of Man
1993: Russian Federation, Lithuania, Ireland, Kazakhstan
1994: Serbia, Bermuda
1995: Albania, Cyprus, Moldova
In Europe and Eurasia criminal prohibitions remain in Armenia, Azerbaijan, Bosnia-Herzegovina, Georgia, Kyrgyzstan, Romania, Tajikistan, Turkmenistan, and Uzbekistan. There are still criminal prohibitions in about half the states of the United States and in the Australian state of Tasmania. A summary of the legal provisions in other States has been published by the International Lesbian and Gay Association. 12
Homosexual acts were recently recriminalized in Nicaragua. While Hong Kong repealed a criminal prohibition when it enacted its bill of rights, India retains a colonial era criminal prohibition. Chinese law does not expressly prohibit homosexual acts, though other provisions are said to be used against homosexuals. Activists in Chile began a campaign in 1995 seeking the repeal of that country’s criminal prohibition, one of only three such laws in Latin America. 13 [End Page 71]
The repeal of criminal prohibitions clears the way for the enactment of antidiscrimination laws. 14 A number of States prohibit discrimination on the basis of “sexual orientation,” an odd euphemism, understood to be a reference to homosexuality. 15 General equality provisions in the constitutions of Canada, France, and the Netherlands have been taken to prohibit discrimination against lesbians and gay men. 16 A notable recent development was the express prohibition of discrimination on the basis of sexual orientation in the 1994 postapartheid constitution of South Africa. Express constitutional protection has been debated in Brazil and Poland. 17
After decriminalization and the prohibition of discrimination against individual lesbian women and gay men, the next logical step is the recognition of lesbian and gay relationships for the purposes of laws or arrangements which recognize heterosexual marriage or cohabitation. Such recognition, dealing with employment benefits, health insurance, residential tenancies, and immigration rights, has been developing quite rapidly in the West on an ad hoc basis. 18
The first general law recognizing same-sex relationships was the 1989 Danish law giving legal status to “registered partnerships.” 19 Similar laws [End Page 72] were enacted in Norway in 1993 and in Sweden in 1994. 20 In 1995 Denmark, Sweden, and Norway agreed on mutual recognition of registered partnerships, further equating them with legal marriage. 21 Local laws allowing registration of relationships now exist in over twenty jurisdictions in the United States and in seventy cities in the Netherlands. 22 A registration law was passed by the California legislature in 1994, but was vetoed by the Governor. 23 A comprehensive package of reforms including some registration features, was narrowly defeated in Ontario in 1994. 24 Reforms which would give recognition to same-sex relationships have been considered in the Netherlands, France, Spain, the Czech Republic, Slovakia, and Finland. 25 Proposals for registration laws have been made in Queensland and the Australian Capital Territory. 26
C. The Mutability of Social and Religious Attitudes
Assumptions are often made about the universality, continuity, and strength of antihomosexual views. Some argue that homosexuality has been consistently opposed in all religious traditions. 27 Tolerance is often seen as a recent innovation limited to Western states. [End Page 73]
A fresh understanding of historical and cross-cultural views of homosexuality is emerging as a result of new scholarship. There appears to have been no uniform antihomosexual tradition in Christianity or in other major religious and cultural traditions. Rather there have been periods of openness and tolerance and periods of repression. According to some accounts, gay male activity was common and accepted in classical Greece and Rome. 28 Christianity was apparently tolerant until the 13th century. 29 The Kama Sutra has a full chapter on same-sex love and lesbian and gay homoerotic carvings feature on the famous Indian religious temples of Kanarak and Khajuraho. 30 In addition, male homosexual activity was accepted by some of the Muslim rulers in India. 31 A gay male classic from 17th century Japan has recently been translated. 32 At many points in Chinese history “homosexuality acted as an integral part of society, complete with same-sex marriages for both men and women.” 33
Antihomosexual repression has often been associated with intolerance of other minorities. Western European Christianity in the 13th century persecuted homosexuals, heretics, Jews, and Muslims. Nazi Germany murdered Jews, homosexuals, communists, anarchists, and Roma. 34
There are a number of former colonies where Western antihomosexual criminal laws survive, though the same laws have been repealed in the country of origin. The laws are defended by local elites who may still be reacting against Western stereotypes of sexually permissive natives. Lesbian and gay organizations in India and Indonesia base some of their arguments [End Page 74] for acceptance on indigenous homoerotic traditions, traditions they say were suppressed by colonialism.
2. Social Organization of Homosexuality
While lesbian and gay sexual activity occurs in all societies (with or without tolerance), there are great differences in the social organization of sexuality. In some societies homosexual activity is tolerated as long as the men and women involved marry and have children. 35 In others a sharp distinction is made between the “active” and “passive” roles in male homosexual activity, with the “active” partner remaining free of homosexual stigma. In some societies there has been a special status for males who assumed female dress and participated in homosexual acts. 36 Recent literature on some Melanesian societies described male patterns unfamiliar to Western readers. 37 There is still limited data on the various patterns and very little information on lesbian women.
3. The Emergence of “Homosexual” Identities
A general (perhaps Western) analysis has emerged which suggests that at most times and in most societies homosexuality has not been an exclusive identification for individuals. Lesbian and gay identities, so familiar in the West today, were, in a general sense, not possible before the late 19th century when the terms “homosexual” and “heterosexual” were coined. 38 By that point children were no longer economically essential to all family units. It had become possible for children of the new middle classes to live as “homosexuals.” 39 In this sense, as a leading book title states, we have had only “One Hundred Years of Homosexuality.” In the current stage of this hundred year evolution, lesbian women and gay men are able to interact [End Page 75] with the larger society as members of minorities, not as isolated deviants. Thus, while homosexual activity and homoerotic relationships are old and universal, “homosexuals” and the lesbian and gay minorities are new.
4. Normalization of Lesbian and Gay Patterns
The continuing evolution of the characteristics associated with members of the lesbian and gay minorities in the West is striking. The stereotype of the effeminate cross-dressing gay man has been replaced in popular culture by a masculine image. Hair and clothing styles previously associated with lesbians now have wide acceptance among women. These changes represent a strong normalization of the images and realities of lesbian and gay life. Lesbian women and gay men have become less distinctive, more assimilated into societal norms.
5. The Response to New Understandings
Sexual orientation emerges as quite different than it has been conventionally understood. Simple ideas of moral choice or individual perversity no longer have credibility. Considerable work is underway to determine the possible causes of homosexual orientation. This research is part of extensive new work on possible genetic causes of a wide range of conditions, from Alzheimer’s disease to altruism. As this research continues, new analyses are emerging on sexual history and the organization of sexuality in different cultures. At times, it seems like all conventional wisdom is in question. In this context, and in the wake of the achievements of feminist scholarship, lesbian and gay studies are now academically important. Leading university publishing houses in the West are now regularly publishing titles on lesbian and gay issues, a pattern which began in the 1980s. 40
The newness of contemporary lesbian and gay identities and of the lesbian and gay minorities explains the recent character of the campaign for equality rights. It also helps to explain something of the history of antihomosexual criminal laws, which, with their sexist focus on men, were aimed at perversely chosen acts, not at a category of individuals or at a minority. The recognition of lesbian women and gay men as minorities legitimates their claim to equality rights, by making clear the analogy to the [End Page 76] situation of women, visible minorities, and cultural minorities. Some opponents have recognized the significance of “minority” status and argue that lesbian women and gay men are not legitimate minorities. 41
It is difficult for decisionmakers and political representatives to sense the extent to which public attitudes have changed. They also fear, with reason, that opponents of equal rights will be more vocal than supporters. As a result most politicians avoid lesbian and gay issues, even when polls indicate majority support for nondiscrimination. Over and over again politicians and diplomats act as if times have not yet changed.
D. The State of Lesbian and Gay Organization
In the postwar period, lesbian women and gay men began to organize as minorities. 42 Two of the first organizations were the Netherlands Association for the Integration of Homosexuality, COC, formed in 1946; the national Danish organization, LBL, started in 1948. In 1951 the Mattachine Society was founded in Los Angeles. The Daughters of Bilitis was formed in 1955 in San Francisco. The first Canadian organization, the Association for Social Knowledge, was formed in 1964 in Vancouver. The early organizations usually had “closeted” names.
The modern lesbian and gay movement dates from June 1969, when a group of gay men fought back during a police raid at the Stonewall Inn bar in New York City. The event is now remembered as the beginning of the international “gay liberation” movement. 43 The first “gay pride” march was held in New York City one year later. Pride marches became annual events in scores of cities. The first pride parade in Argentina was held in 1992, the first in South Africa in 1993, and the first in Japan in 1994. In July 1993, Turkish police forcibly prevented the first attempted pride parade in Istanbul, arresting organizers and deporting foreigners who had come to participate. 44 [End Page 77]
Lesbian and gay organizations are now common in the West and have developed in other regions. The International Lesbian and Gay Association was formed in 1978 and currently has over 300 member organizations. In recent years organizations have formed in Albania, Argentina, China, Hong Kong, India, Indonesia, Latvia, Malaysia, Mexico, Nigeria, Peru, Russia, South Africa, Thailand, and Ukraine.
Lesbian and gay businesses have developed serving the new lesbian and gay neighborhoods in the large Western cities. There are bars, baths, bookstores, clothing stores, newspapers, and magazines. In large cities there are social or community centers. In spite of changes, it remains true that lesbians and gay men are very poorly organized for political purposes, even in the West. National lobbying organizations exist, but vary greatly in stability and effectiveness. Dispersal of numbers, continuing stigma, and the pattern of “passing” continue to mean weak organizational patterns for these large minorities. While the International Lesbian and Gay Association has established a continuing presence at meetings of the CSCE/OSCE from 1980 and at the United Nations from 1992, this presence has been dependent on a very small number of individuals and has often involved no organizational funding. ILGA is a very limited organization, without recognition in international media.
E. Developments at the European Regional Level
1. European Convention on Human Rights
The decision of the European Court of Human Rights in Dudgeon v United Kingdom remains the watershed event in international human rights law for lesbian women and gay men. 45 The United Kingdom decriminalized adult homosexual activity in 1967 in England and Wales. The older criminal law remained in place in Northern Ireland. In 1975 Jeffrey Dudgeon, an activist with the Northern Ireland Gay Rights Association, challenged the law under the provisions of the European Convention on Human Rights. The Court [End Page 78] ruled in 1981 that the prohibition violated the right to respect for private life. 46
There were particular aspects of the Dudgeon case that helped secure a victory. The United Kingdom could not convincingly claim that the law was necessary for the “protection of health or morals” when it had repealed the same law in England and Wales. 47 Further, the law was not being enforced, providing additional evidence that it was not necessary. The Court noted “marked changes” in the domestic laws of other European states, making the law in Northern Ireland anomalous in the United Kingdom and in Europe as a whole. 48 The facts before the Court made it clear that the United Kingdom wanted to end the criminal law provisions in Northern Ireland. Reform was stalled by the loud opposition of the Reverend Ian Paisley and his campaign to “Save Ulster from Sodomy.” Public opinion in Northern Ireland was evenly divided. The Court was able to support Dudgeon and the United Kingdom by ruling against Ian Paisley and his supporters, who were the real adverse parties in the litigation.
Since the decision in Dudgeon, homosexual acts have been decriminalized in Northern Ireland and other areas under the jurisdiction of the Parliament of the United Kingdom. The Dudgeon case was followed by the European Court of Human Rights in 1988 in Norris v Ireland. 49 Ireland reformed its laws in 1993. The Court repeated the ruling in 1993 in Modinos v Cyprus. 50 Cyprus reformed its laws in 1995.
These three decisions struck down criminal laws prohibiting all homosexual activity, including private consensual acts between adults. The [End Page 79] European human rights system has not yet gone further. There is a general consensus in Europe on issues like exclusion from military service and unequal age of consent laws, but that consensus is not yet reflected in decisions of the Commission or Court. 51 The European human rights system, after a bold start in the Dudgeon case, is lagging behind the views of other European institutions and the laws of the individual European states.
There are two particular problems inhibiting movement in the European human rights system. First, the Convention lacks a general equality provision. Article 14 provides only that the rights and freedoms set out in the Convention are to be secured without discrimination. 52 Additionally, the Commission has ruled that homosexual relationships do not come within the provision on respect for family life. This has sharply narrowed the grounds which can be argued under the Convention. 53
Two new cases from the United Kingdom are before the Commission. The Sutherland case is a new challenge to unequal age of consent laws. 54 The Brown case challenges assault convictions for sadomasochistic activity, seeking to apply Dudgeon anew in the context of the criminal law and private consensual activity. 55 [End Page 80]
2. The Council of Europe
The Council of Europe is a broad political organization, responsible for the European Convention on Human Rights and its machinery. Membership in the Council of Europe is a prerequisite for any application to join the European Union. New members of the Council must agree to ratify the Convention.
The International Lesbian and Gay Association, conscious of the limited recognition of lesbian and gay equality rights under the European Convention, decided in 1990 to press for an additional protocol to the Convention which would expressly prohibit discrimination on the basis of sexual orientation. While there is some support, the proposal has not advanced. 56 ILGA has also applied to the Council of Europe for consultative status. The application was rejected as “not directly related to the present work programme of the Council of Europe.” 57 A new application was submitted in 1995.
In 1981 Mr. Joop Voogd, Chair of the Committee on Social and Health Questions, submitted a report to the Parliamentary Assembly of the Council of Europe, entitled “Discrimination Against Homosexuals.” 58 The report led to a set of resolutions (a) calling on the World Health Organization to remove homosexuality from its list of diseases (which has occurred), (b) urging member states to decriminalize homosexual acts and apply equal ages of consent for homosexual and heterosexual acts, and (c) seeking equal treatment for lesbians and gay men in employment. 59 In a 1983 resolution on issues of HIV/AIDS the Parliamentary Assembly voted to “reaffirm its unshakeable attachment to the principle that each individual is entitled to have his privacy respected and to self-determination in sexual matters.” 60
In February 1993, members of the Parliamentary Assembly adopted Written Declaration No. 227 stressing the need to end the practice of discrimination against homosexuals in former Communist countries. [End Page 81]
Since 1989 a number of eastern European states have sought admission to the Council of Europe. Since new member states must agree to ratify the European Convention on Human Rights, 61 there is consideration whether the domestic laws of the applicant state are in compliance with the Convention. Since the Dudgeon case, criminal prohibitions of homosexual activity are clearly in conflict with the Convention and applicant states are expected to repeal such laws. In 1993 Lithuania was admitted to the Council of Europe without having reformed its laws, but made the change two months later. In that year the Council of Europe issued a strongly worded resolution on Romania’s application calling for the repeal of antihomosexual criminal laws. There has been continuing controversy over Romania’s failure to bring its laws into line with the Convention, even after Romania became a member of the Council of Europe.
3. The European Union
In 1984 a resolution of the European Parliament on sexual discrimination at the workplace specifically condemned discrimination against homosexuals and called on member states to report any provisions in their laws which discriminated against homosexuals. 62 The Charter on Sexual Harassment in the Workplace expressly includes protections for lesbian women and gay men. 63 The Charter was drafted and adopted by the European Commission, passed in the European Parliament in 1991, and endorsed by the Council of the European Community.
In 1993 the Committee on Civil Liberties and Internal Affairs of the European Parliament completed a report on equal treatment for gays and lesbians in the European Community (the Roth report). 64 This work resulted in a general resolution which was passed in the European Parliament in February 1994. 65 The resolution is the most important step taken within the European Union. The resolution: [End Page 82]
5. Calls on the Member States to abolish all legal provisions which criminalize and discriminate against sexual activities between persons of the same sex;
6. Calls for the same age of consent to apply to homosexual and heterosexual activities alike.
7. Calls for an end to the unqeual treatment of persons with a homosexual orientation under the legal and administrative provisions of the social security system and where social benefits, adoption law, laws on inheritance and housing and criminal law and all related legal provisions are concerned;
8. Calls on the United Kingdom to abolish its discriminatory provisions to stem the supposed propagation of homosexuality and thus to restore freedom of opinion, the press, information, science and art for homosexual citizens and in relation to the subject of homosexuality and calls upon all Member States to respect such rights to freedom of opinion in the future;
9. Calls on the Member States, together with the national lesbian and homosexual organizations, to take measures and initiate campaigns against the increasing acts of violence perpetrated against homosexuals and to ensure prosecution of the perpetrators of these acts of violence;
10. Calls upon the Member States, together with the national lesbian and homosexual organizations, to take measures and initiate campaigns to combat all forms of social discrimination against homosexuals;
11. Recommends that Member States take steps to ensure that homosexual women’s and men’s social and cultural organizations have access to national funds on the same basis as other social and cultural organizations, that applications are judged according to the same criteria as applications from other organizations and that they are not disadvantaged by the fact that they are organizations for homosexual women or men; 66
The resolution seeks a recommendation from the Commission of the European Community on equal rights for lesbian women and gay men. The resolution says that the recommendation should seek to end
— the barring of lesbian and homosexual couples from marriage or from an equivalent legal framework, and should guarantee the full rights and benefits of marriage, allowing the registration of partnerships,
— any restriction on the right of lesbians and homosexuals to be parents or to adopt or foster children. 67
The resolution is remarkable in its support for marriage or registered partnerships (thereby endorsing laws currently existing in only two European states) and in its demand for equal access to adoption rights. 68 The [End Page 83] resolution is also striking in its call for state recognition of and cooperation with lesbian and gay organizations. This is a common pattern in northern Europe, but new or unheard of in many parts of the world. 69
Are there provisions in the legal regime of the European Union to support lesbian and gay rights? The Treaty of Rome requires that member states respect the principle that men and women should receive equal pay for equal work. A Council Directive extends this principle to equal treatment for men and women in access to employment. 70 The Council has not dealt with employment discrimination on the basis of sexual orientation. There is free movement within the Union of citizens of member states. The failure to recognize same-sex partners, particularly those who are not Euro-citizens, will inhibit the free movement of lesbian women and gay men within the Union. The issues may include residency rights, rights to work, or “spousal” benefits. The European Court of Justice has held that an unmarried heterosexual partner of a citizen of the United Kingdom, living and working in the Netherlands, had to be treated as a spouse for purposes of residency rights because to deny such rights would mean discrimination in the law of the Netherlands between nationals of the Netherlands and nationals of another European Union state. 71 This reasoning gives a limited recognition to unmarried heterosexual relationships that would apply with equal logic to same-sex relationships in certain member states. Apparently a parallel case on same-sex partners has not arisen, perhaps because the states that recognize same-sex partners for immigration and employment purposes have extended that recognition to Euro-citizens as well as their own nationals.
In May 1995, the European Parliament resolved that the Treaty of the European Union should ban discrimination on the basis of sexual orientation. The Parliament also extended certain employment benefits to the same-sex partners of its employees. 72 [End Page 84]
4. Organization for Security and Cooperation in Europe
Lesbian and gay representatives were active around meetings of the Conference on Security and Cooperation in Europe beginning in 1980. 73
Official parallel meetings, organized by lesbian and gay groups, were held at the time of the Third Meeting of the CSCE Conference on the Human Dimension in Moscow in 1991. ILGA participated in the CSCE meeting itself as a nongovernmental organization. Three state participants, Canada, Denmark, and Sweden, supported consideration of lesbian and gay rights issues. 74 ILGA also participated in the CSCE Seminar of Experts on Democratic Institutions in Oslo in November 1991.
The first discussion of sexual orientation issues within the CSCE itself occurred at the Follow-Up Meeting, Helsinki II, in Helsinki in 1992. An official parallel meeting was organized by the Finnish group SETA, funded by the Finnish ministry of foreign affairs. The opening speech at the CSCE conference, by Norwegian Foreign Affairs Minister Thorvald Stoltenberg, mentioned lesbian and gay rights. Norway introduced a motion asking states “to take steps to prohibit the promotion of hatred or contempt against homosexuals and their organizations. . . .” There was opposition from Spain, the United Kingdom, the United States, the Holy See, and France. Some states were concerned with terminology. The United States believed that “hate speech” laws infringed on freedom of speech. No reference to lesbian and gay issues appeared in the final resolutions, though a number of government delegations made positive statements on lesbian and gay rights, including Austria, Finland, Sweden, and the United States. 75 [End Page 85]
In November 1992, an ILGA representative spoke in the final plenary session of the CSCE Expert Seminar on Tolerance in Warsaw. In addition, Miriam Turksma, lesbian and gay issues coordinator for the City of Amsterdam and a member of the Netherlands delegation, spoke on her work. Members of the delegations from Denmark, Norway, Sweden, and the United States referred to lesbian and gay issues. 76
In the fall of 1993 a CSCE Implementation Meeting on Human Dimension Issues held in Warsaw produced the first formal recognition of lesbian and gay issues. Representatives of Denmark, the Netherlands, Norway, and Sweden spoke on guaranteeing equality to homosexuals, and references to lesbian and gay issues were made by representatives of Canada, Ukraine, and the United States. ILGA Secretary-General Hans Hjerpekjon of Norway addressed the plenary session. The Final Report of the meeting included the following sentences:
Participants point out to groups which were not “national minorities” but which none the less suffered discrimination, including women, homosexuals, migrant workers, and conscientious objectors. . . .
It was pointed out that CSCE commitments in the area of non-discrimination cover homosexuals as well. Suggestions were made that discriminatory State policies against homosexuals, and criminalizing legislation, should be eliminated. 77
ILGA continued to participate in CSCE events, including the CSCE Human Dimension Seminar on Free Media in Warsaw in November 1993, and the Third Session of the CSCE Parliamentary Assembly in Vienna in July 1994. ILGA representatives participated in the CSCE review conference in Budapest between October and December 1994, where CSCE became OSCE, the Organization for Security and Cooperation in Europe. While these representatives received indications of support from the delegations of Canada, the Netherlands, Norway, Sweden, and the United States, no references to lesbian and gay rights were included in the final document. The Netherlands and Norway made a joint statement entitled Tolerance and Homosexuality, the first governmental statement in these meetings devoted exclusively to sexual orientation issues. 78 ILGA participated in the OSCE Human Dimension Seminar on Freedom of Association and NGOs held in [End Page 86] Warsaw in April 1995, and in the joint OSCE/Council of Europe International Seminar on Tolerance in Bucharest in May 1995. 79
The Parliamentary Assembly of the OSCE met in Ottawa in July 1995. The Assembly passed a declaration which called on member States
[t]o ensure that all persons belonging to different segments of their population be accorded equal respect and consideration in their constitutions, legislation and administration and that there be no subordination, explicit or implied, on the basis of ethnicity, race, colour, language, religion, sex, sexual orientation, national or social origin or belonging to a minority. 80
The reference to sexual orientation was included at the initiative of Danish parliamentarians. It passed by a large majority, over protests from Bulgarian members.
5. Funding decisions by European institutions
The European Commission funded summer courses in lesbian and gay studies in Utrecht in 1989, in Essex in 1991, and again in Utrecht in 1995. The courses were organized by a number of European universities, including the Department of Gay and Lesbian Studies at the University of Utrecht in the Netherlands.
European Union funding resulted in the production and publication in 1993 of two significant studies, Lesbian Visibility and Homosexuality: A European Community Issue. 81
The Democracy Programme of the European Union is designed to support economic and political reform in former Eastern-bloc states. In 1994 the Programme funded an antidiscrimination project of the International Lesbian and Gay Association involving work with seven lesbian and gay organizations in Estonia, Latvia, Lithuania, and the Russian Federation. 82 [End Page 87]
F. Developments at the United Nations
1. The Human Rights Commission and the Sub-Commission
A 1983 study on prostitution, seen as a slavery-like practice, done for the Sub-Commission on Prevention of Discrimination and Protection of Minorities, recommended an additional study on male prostitution. The recommendation made confused references to transvestism, transsexuality, and pedophilia.
The resulting study, on the legal and social problems of sexual minorities including male prostitution, was completed in 1987. The International Lesbian and Gay Association forwarded information to Mr. Fernand-Laurent, the special rapporteur, through Minority Rights Group, an accredited nongovernmental organization. The report contained an odd mix of stereotypes and misinformation. The analysis was strongly wedded to conventional ideas of gender roles. The report attracted almost no attention. Mr. Rhenan-Segura, a member of the Sub-Commission, called the study superficial and the conclusions dubious. He found the study to be of poor quality and said it had been received under an inappropriate agenda item, the consideration of the report of the Working Group on Slavery and Slavery-Like Practices. There were no follow up resolutions. 83
On 13 August 1993, Mr. Louis Joinet, the French member of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, proposed that the mandate of a study on new forms of racism and xenophobia be expanded to include consideration of discrimination on the basis of sexual orientation. The proposal was not accepted. On 24 August 1995, he proposed an amendment to a resolution condemning discrimination on the basis of HIV status or AIDS. The resolution mentioned nine examples of groups “suffering from disadvantaged economic, social or legal status” who were, as a result of that marginalization, more vulnerable to the risk of HIV infection. The list did not include male homosexuals, an obvious category for any such list. Mr. Joinet moved for the addition of that category. The amendment was strongly opposed by two members, Ms. Warzazi and Ms. Gwanmesia. After a somewhat heated exchange and an accusation of homophobia, the amendment was passed with ten affirmative votes, five negative votes, and six abstensions. This appears to be the first resolution of the Commission or Sub-Commission to refer expressly to homosexuals. 84 [End Page 88]
2. Criteria for Assessing Human Rights Performance
The 1991 Human Development Report, issued by the UN Development Programme, rated countries according to a “Human Freedom Index,” reflecting the thesis that “freedom” strengthens economic growth. “The Group of 77 objected, in particular, to the inclusion of [the] freedom for homosexual activity as one of the forty criteria used in constructing the index.” 85 Because of the controversy, the UNDP developed a new “Political Freedom Index” to replace the broader “Human Freedom Index” and stopped publishing the ratings of individual states.
A major study on economic, social, and cultural rights by Special Rapporteur Danilo Turk, received by the Sub-Commission in 1992, addressed the issue of indicators to be used in assessing state compliance. One approach, the study said, was to begin with assessing patterns of discrimination. It went on:
To apply discrimination-oriented criteria, however, it will be necessary to devote increased attention to areas of discriminatory behaviour generally ignored at the international level, in particular the grounds of social status, income level, medical status, age, property and sexual orientation. 86
3. Antidiscrimination Concerns at the World Conferences on Human Rights (Vienna) and Women (Beijing)
Five governments made positive references to lesbian and gay issues at the World Conference on Human Rights held in Vienna in June 1993: Australia, Austria, Canada, Germany, and the Netherlands. The Singapore statement, pointedly called “The Real World of Human Rights,” described most human rights as “still essentially contested concepts.” The statement went on:
Singaporeans, and people in many other parts of the world do not agree, for instance, that pornography is an acceptable manifestation of free expression or that homosexual relationships is just a matter of lifestyle choice. Most of us will also maintain that the right to marry is confined to those of the opposite sex. 87
The draft final statement for the Vienna Conference on Human Rights had an equality paragraph condemning discrimination on listed grounds. Canada proposed adding “sexual orientation” to the list. In response the [End Page 89] paragraph was altered to a general, open-ended prohibition of discrimination, without a list.
Again there were proposals that “sexual orientation” should be referred to in the final statement of the Fourth World Conference on Women, held in Beijing in September of 1995. In a preparatory conference in Vienna in October of 1994, Canada proposed a paragraph addressing discrimination against women on multiple grounds, such as sex and race, sex and disability, and sex and sexual orientation. This “diversity paragraph,” as it came to be known, was included in the draft text without opposition or discussion. At the New York preparatory meeting in March-April, 1995, Canada again proposed the paragraph. The idea of such a paragraph was debated, but not the reference to “sexual orientation.” The paragraph, along with much of the draft was “braceted,” indicating that there was no consensus on the wording. At the New York meeting several delegations, including South Africa, Canada, Israel, and the European Union proposed wording that referred to lesbians or to “sexual orientation.” 88
Lesbians were highly visible at the Conference in Beijing and at the NGO Forum in Huairou. At the Forum there was a lesbian venue, the “lesbian tent,” and a large lesbian march on 5 September. Eleven explicitly lesbian or lesbian and gay organizations were accredited to the conferences. 89
At the beginning of the Beijing Conference there were four references to “sexual orientation” in the draft “Platform of Action.” Two references were in descriptive “diversity” paragraphs. The third reference called on governments to take action to eliminate discrimination in employment based on sexual orientation. The fourth called on states to provide legal safeguards to prevent persecution on the basis of sexual orientation. The four references were considered together in a drafting committee meeting that stretched into the early morning of Friday, 15 September, ending after 4 a.m. After an hour of debate on sexual orientation, the chair, Ms. Patricia Licuanan, [End Page 90] commented that this had been the first substantive discussion of the subject in any UN forum. She said it required much more discussion, but, given the division, the references would be omitted. 90 Thirty-three states indicated their support for the references. 91 Twenty states indicated opposition. 92
4. United Nations Concerns with Criminal Law
ILGA made written and oral submissions to the European regional preparatory meeting for the 1995 World Congress of the UN Commission on Crime Prevention and Criminal Justice. The final report of the meeting stated a concern with violence against homosexuals and recommended decriminalization of homosexual activities between consenting adults. 93
G. United Nations Treaty Bodies
1. The Human Rights Committee
The first decision of the Human Rights Committee dealing with lesbians and gay men occurred in 1982 in Hertzberg v. Finland. 94 Finnish penal law prohibited the public encouragement of “indecent behaviour” between persons of the same sex. This provision led to regulations and policies against radio and television programs dealing with homosexuality. The communication argued freedom of expression in the context of particular radio and television programs. Two had been censored and a third had been prosecuted, unsuccessfully, under Finnish penal law. Article 19 (3) of the [End Page 91] International Covenant on Civil and Political Rights provides that freedom of expression is
[s]ubject to certain restrictions, but these shall only be such as are provided by law and are necessary: . . . (b) For the protection of . . . public health or morals.
Finland argued that the restrictions in Finnish law reflected prevailing moral conceptions. The Committee considered asking for the transcripts of the two censored programs, noting that only by such an examination could it determine whether the programs were mainly or exclusively made up of factual information on issues relating to homosexuality. Apparently willing to assume that the programs could have been wholly factual, the Committee ruled in favor of Finland.
It has to be noted, first, that public morals differ widely. There is no universally applicable common standard. Consequently, in this respect, a certain margin of discretion must be accorded to the responsible national authorities.
The Committee finds that it cannot question the decisions of the responsible organs of the Finnish Broadcasting Company that radio and TV are not appropriate forums to discuss issues related to homosexuality, as far as a programme could be judged as encouraging homosexual behaviour. According to article 19 (3), the exercise of the rights provided for in article 19 (2) carries with it special duties and responsibilities for those organs. As far as radio and TV programmes are concerned, the audience cannot be controlled. In particular, harmful effects on minors cannot be excluded. 95
Distinguished Norwegian academic Torkel Opsahl was joined by two other members of the Committee, in dissenting from this reasoning:
Under Article 19(2) and subject to article 19(3), everyone must in principle have the right to impart information and ideas—positive or negative—about homosexuality and discuss any problem relating to it freely, through any media of his choice and on his own responsibility.
Moreover, in my view the conception and contents of the “public morals” referred to in article 19(3) are relative and changing. State-imposed restrictions on freedom of expression must allow for this fact and should not be applied so as to perpetuate prejudice or promote intolerance. It is of special importance to protect freedom of expression as regards minority views, including those that offend, shock or disturb the majority. Therefore even if such laws as paragraph 9(2) of chapter 20 of the Finnish Penal Code may reflect prevailing moral conceptions, this is not in itself sufficient to justify it under article 19(3). It must also be shown that the application of the restriction is “necessary.” 96 [End Page 92]
Prohibitions on the promotion or encouragement of homosexuality continue to be part of the law in Austria, Finland, and Liechtenstein. 97
In 1994 the Human Rights Committee decided Toonen v Australia, a case with strong similarities to Dudgeon v. United Kingdom. 98 Toonen, like Dudgeon, was a gay rights activist. Tasmania, like Northern Ireland, was an anomalous jurisdiction, retaining old criminal prohibitions on homosexual activity. All other Australian jurisdictions had decriminalized. The government of Australia, like that of the United Kingdom, was critical of such criminal laws. As in Northern Ireland, the law in Tasmania was not enforced in practice. As in Northern Ireland, opinion in Tasmania was divided on law reform. As in Northern Ireland, opposition was led by intemperate reactionaries. Elected representatives were quoted as saying that gay men were “no better than Saddam Hussein” and that people were “15 times more likely to be murdered by a homosexual than a heterosexual. . . .” 99
Toonen argued privacy rights and equality rights. Article 17 of the International Covenant on Civil and Political Rights bars “arbitrary or unlawful interference” with privacy. Article 26 prohibits discrimination
[o]n any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 100
There were two equality arguments. The discrimination was on the basis of “sexual orientation” which, it was argued, would come within the phrase “other status.” 101 As well the law discriminated on the basis of “sex” by applying only to male homosexual activity. By ignoring lesbians, the law followed a criminal law tradition that denied women’s sexuality.
Tasmania, which was allowed by Australia to make submissions to the Committee, argued that the law was partly motivated by a concern to check the spread of HIV/AIDS. But Australia, the World Health Organization (W.H.O.), and the UN Human Rights Commission all agreed that criminal prohibitions aimed at gay men made it more difficult to organize effective programs to prevent HIV infection. 102
Tasmania also argued a moral basis for the prohibition. Australia con-ceded that “domestic social mores may be relevant to the reasonableness of [End Page 93] an interference with privacy,” while asserting a general Australian view that discrimination on the basis of sexual orientation was wrong. 103
The Committee followed the rulings in Dudgeon, Norris, and Modinos in finding that the Tasmanian law violated Toonen’s right to privacy. They easily rejected Tasmania’s specious arguments on HIV/AIDS and turned to the issue of a moral justification for the law in a passage which clearly departs from the spirit of the majority ruling in Hertzberg:
The Committee cannot accept that for the purposes of article 17 of the Covenant, moral issues are exclusively a matter of domestic concern, as this would open the door to withdrawing from the Committee’s scrutiny a potentially large number of statutes interfering with privacy. It further notes that with the exception of Tasmania, all laws criminalizing homosexuality have been repealed throughout Australia and that, even in Tasmania, it is apparent that there is no consensus as to whether Sections 122 and 123 should not also be repealed. Considering further that these provisions are not currently enforced, which implies that they are not deemed essential to the protection of morals in Tasmania, the Committee concludes that the provisions do not meet the “reasonableness” test in the circumstances of the case, and that they arbitrarily interfere with Mr. Toonen’s right under article 17, paragraph 1. 104
The Committee dealt briefly with the issue of equality rights:
The State party has sought the Committee’s guidance as to whether sexual orientation may be considered an “other status” for the purposes of article 26. The same issue could arise under article 2, paragraph 1, of the Covenant. The Committee confines itself to noting, however, that in its view the reference to “sex” in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation. 105
The Committee was not saying that the exclusive focus on male activity constituted discrimination on the basis of “sex.” Nor did it place “sexual orientation” within the phrase “other status.” 106 The Committee said that “sex” included “sexual orientation.”
Homosexuality, like heterosexuality, is a relational concept. Homosexuals [End Page 94] are individuals who are attracted to members of the same sex. The sex of the individual and the sex of potential partners determine membership in the category. Take a person who is attracted to a woman. If the person is also a woman, she is homosexual. If the person is a man, he is heterosexual. A heterosexual couple is made up of a man and a woman. A lesbian couple is made up of two women. A gay couple is made up of two men. The differences between these three kinds of couples lie in the sex of individuals. This analysis is reasonably simple, but has been resisted by most decisionmakers. Why is that so? It is because homosexuality is an emotionally charged subject for most people. Sexual orientation attracts the attention of the decisionmaker, not the more mundane fact that the discrimination operates on the basis of the sex of individuals—a factor that is not controversial. So long as homosexuality provokes emotional responses discrimination against homosexuals will not be seen as discrimination on the basis of sex. If homosexuality is seen dispassionately then discrimination can be seen as discrimination on the basis of sex. The Human Rights Committee was dispassionate. 107
The Tasmanian government refused to comply with the Committee’s decision. The Australian Parliament invoked its “foreign affairs” power and enacted legislation establishing a right to sexual privacy, intending the legislation to override the offending provisions in Tasmanian law. 108 Tasmania has refused to accept that its antihomosexual laws are “an arbitrary interference with the right to privacy” within the terms of the national legislation. The matter will be heard by the Australian High Court. 109 In the course of this litigation the Australian High Court may be called upon to review the Human Rights Committee’s decision in Toonen.
Since the Toonen decision, the Human Rights Committee has included a concern with antihomosexual criminal laws in its review of the reports of states parties on compliance with the Covenant. For example, in their 1995 [End Page 95] comments on the report of the United States, the Committee expressed concern about the
[s]erious infringement of private life in some states which classify as a criminal offence sexual relations between adult consenting partners of the same sex carried out in private, and the consequences thereof for their enjoyment of other human rights without discrimination. 110
H. Other Intergovernmental Organizations
1. International Labour Organization
The International Labour Organization Convention No. 111, the Convention on Discrimination in Employment or Occupation, does not itself prohibit discrimination on the basis of sexual orientation but permits state parties to add additional grounds. Australia declared sexual preference to be a ground of discrimination that may be invoked under the Convention and authorized the Australian Human Rights and Equal Opportunity Commission to consider allegations of discrimination. This implementation of the Convention in domestic law played a major role in the decision of Australia to end the bar on lesbians and gay men in the armed forces in 1992. 111
2. World Health Organization
The World Health Organization’s Global Programme on AIDS was established in 1987. While W.H.O. constantly restates the basic proposition that HIV/AIDS is not a gay disease, it has pointed out that discriminatory patterns towards gay men, women, and racial minorities create serious problems for effective HIV prevention programs. 112 ILGA and other lesbian and gay rights organizations have participated in the various HIV/AIDS conferences organized by W.H.O. The World Health Organization funded several research projects at the Department of Gay and Lesbian Studies at the University of Utrecht. [End Page 96]
3. Regional Treaty-Based Human Rights Bodies
In 1992 the refusal of the Government of Argentina to grant legal status to the nongovernmental organization Comunidad Homosexual Argentina was taken to the Inter-American Commission of Human Rights. The refusal had been confirmed in a decision of the Supreme Court of Argentina. 113 Later that year the government granted legal recognition to the organization, an act which the Commission considered an “amicable settlement” of the matter. 114 The same problem has been repeated in 1995 with the refusal of government agencies to register the Costa Rican group Abraxas and the Association of Honduran Homosexuals Against AIDS. 115
In 1995 a petition was submitted to the African Commission on Human Rights asking it to open an inquiry into Zimbabwe’s laws and policies on homosexual conduct. The communication was withdrawn at the request of the country’s largest lesbian and gay organization out of concern for possible reprisals by the government. 116 Later in 1995, a large book fair, annually held in Harare, banned a gay rights exhibit under pressure from the government. Four organizations boycotted the fair in protest. President Robert Mugabe in a speech opening the fair denounced homosexuals, saying “We do not believe they have any rights at all.” 117 Later he called for an international campaign to oppose those who support homosexuality. 118 He said that homosexuality was not part of African culture. 119
4. The High Commissioner for Refugees
Refugees are defined as individuals who have a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” 120 The UN High Commissioner [End Page 97] for Refugees has interpreted the phrase “social group” to include lesbians and gay men. This interpretation has been accepted in decisions in many states. The first cases to gain widespread coverage in Australia, Canada, and the United States involved individuals from Argentina, Brazil, and China. 121 The idea that lesbians or gay men can constitute a “social group” for refugee status no longer seems controversial and is expressly stated in the 1991 Austrian law on asylum. The issue in individual cases will be proving a well-founded fear of persecution on the part of the individual making the application.
I. Nongovernmental Organizations and Human Rights Monitoring
1. The International Lesbian and Gay Association (ILGA)
The application of the International Lesbian and Gay Association for consultative status with the Economic and Social Council was first considered in February 1991. The application was opposed by certain Arab states and the Philippines. No vote was taken. The application was deferred. The application of Human Rights Watch was deferred at the same session. 122 The tradition of consensus decisionmaking in the committee seemed to ensure that neither organization would be approved in the foreseeable future.
The second application was considered in March 1993. Again there was opposition. Ireland, Russia, and Cuba pressed for a vote on ILGA, with Ireland insisting most strongly. This was surprising, for homosexual activity was still illegal in Ireland in defiance of the judgment of the European Court of Human Rights in the Norris case. 123 The committee broke with tradition [End Page 98] and voted. Nine members of the committee voted in favor of ILGA: Bulgaria, Chile, Costa Rica, Cuba, France, Greece, Ireland, Russian Federation, and Sweden. Four voted against: Iraq, Lesotho, Oman, and the Sudan. 124 The decision was forwarded to the Economic and Social Council.
The World Conference on Human Rights was held in Vienna in June 1993. NGO participation could not be restricted to formally accredited organizations, for that would go against the precedent set at the “Earth Summit” in Rio de Janeiro and would block effective participation from developing states. Three lesbian and gay organizations were accredited, ILGA, the Australian Council for Lesbian and Gay Rights, and EGALE from Canada. Individuals from six additional lesbian and gay organizations participated in the Conference under various accreditations. A number of statements were made by lesbians and gay men in the Main Committee and in the Plenary.
In July 1993, the Economic and Social Council considered the report of the NGO accreditation committee. Both ILGA and Human Rights Watch were approved by roll-call votes. The Western regional group supported ILGA, with additional support from states in Eastern Europe, Latin America, and Asia. Twenty-two states voted in favor: Argentina, Australia, Austria, Belarus, Belgium, Brazil, Canada, Chile, Cuba, Denmark, France, Germany, Italy, Japan, Mexico, Norway, Peru, Russia, Spain, Ukraine, the United Kingdom, and the United States. Four states voted against accreditation: Syria, Malaysia, Swaziland, and Togo. The major states abstaining were China, Colombia, India, and Nigeria. Morocco, unsure of how to vote, announced that they were “absent.” This provoked laughter throughout the room. Cuba told representatives of ILGA that it had “learned from its mistakes.” 125 The approval of consultative status allowed ILGA to participate in the meetings of the Sub-Commission on Prevention of Discrimination and Protection of Minorities in August 1993.
In September 1993, the story broke in the United States that the North American Man/Boy Love Association (NAMBLA), was a member of ILGA, and that the United States had supported ILGA’s accreditation at the United Nations. 126 NAMBLA, oddly, had been the first US organization to join ILGA, joining when there were no screening procedures for new members. NAMBLA’s membership had been a matter of continuing controversy within [End Page 99] ILGA. A major debate at the 1990 ILGA world conference in Stockholm produced a resolution disassociating ILGA from pedophilia. NAMBLA continued to be a member after the Stockholm conference, though its representatives were highly marginalized within the organization. In the subsequent controversies, it was clear that no representatives of NAMBLA or other propedophile organizations played any role as authorized representatives of ILGA, and that ILGA itself did not support pedophilia. 127
The United States indicated that it intended to reopen the vote on accreditation at a resumed ECOSOC meeting in the fall of 1993. ILGA’s initial response was to argue that the organization should be judged by its positions and activities, not by the views of an individual member organization. While this was a reasonable response on the part of any broad based federation or “umbrella” organization, it did not reassure governments on an issue as controversial as pedophilia. Governments which had strongly supported ILGA’s accreditation, such as Australia and Canada, indicated that they would not support ILGA as long as NAMBLA was a member. In the fall of 1993, negotiations between representatives of ILGA and the United States produced an agreement. ILGA would expel all member organizations which advocated pedophilia at the next world conference, to be held in June 1994. The United States would not reopen the question of ILGA’s accreditation unless the organization failed to expel the members. 128
Independently the issues were raised in the US Senate by Senator Jesse Helms in January 1994. Legislation was enacted to make certain contributions to international organizations dependant on the President certifying that the United Nations had not recognized any organization, “which promotes, condones or seeks the legalization of pedophilia, or which includes as a subsidiary or member any such organization.” 129 ILGA participated in the sessions of the Human Rights Commission in February and March 1994. 130 One of ILGA’s statements dealt with the controversy over accreditation and restated ILGA’s opposition to pedophilia. [End Page 100]
In June 1994, ILGA’s world conference expelled three propedophile organizations and passed a general resolution: “Groups or associations whose predominant aim is to support or promote pedophilia are incompatible with the future development of ILGA.” While the vote to expel easily topped a required 80 percent majority, the decision was highly controversial. ILGA in a real sense was bowing to right wing forces in the United States, forces which were deeply hostile to any recognition of lesbian and gay rights. The emotional issue of pedophilia was being used by those forces to attack the Clinton administration, with ILGA and the United Nations being incidental to the fight. But other States, including Australia and Canada, the major supporters of ILGA at the United Nations, now took the same position as the United States on ILGA’s accreditation. The issue had moved well beyond US domestic politics.
Some reasoned that if NAMBLA was expelled, the same US forces might again attack ILGA for some other reason, perhaps on the basis that it tolerated sadism and machocism. Others within ILGA were sympathetic to the view that opposition to consensual pedophilia was part of a larger pattern of oppressive antisexual views imposed by society and the state. For these people, it was important that ILGA adhere to a “liberationist” agenda, rather than seeking respectability. Supporters of NAMBLA, including authors Camille Paglia and Pat Califa, and pioneer activist Harry Hay, participated with NAMBLA in an anti-ILGA March in New York City on the Stonewall anniversary in June 1994.
The ILGA vote was decisive, however, and thereby ended the controversy within the organization. ILGA again participated in the annual meetings of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities.
The US State Department has said that it investigated 5000 organizations as a result of the January 1994 certification requirement introduced by Senator Helms. In August 1994, the US embassy in Germany learned that a propedophile group met under the auspices of the Munich organization VSG once a month. VSG itself did not promote or seek the legalization of pedophilia, but by facilitating the propedophile group it was condoning pedophilia. Because VSG was a member of ILGA the US State Department concluded that it could not meet the certification requirements under the “Helms amendment” as long as ILGA had consultative status at the United Nations. The United States also expressed concern that ILGA did not have sufficient information on its member organizations to be able to satisfy US requests for full information. In a hastily called ECOSOC meeting in September 1994, ILGA’s consultative status was suspended, allowing President Clinton to make the required certification by the end of that month.
While the motion for suspension was passed unanimously, it was [End Page 101] framed as a temporary suspension, not a permanent revocation of accreditation. Canada voted for the motion, but stated that lesbian and gay issues needed to be included in the UN human rights agenda and that ILGA itself was a worthy organization, which deserved accreditation if the controversy over the position of member organizations on pedophilia could be resolved. The resolution authorized the NGO Committee of the Economic and Social Council to hold an intersessional meeting to inquire into the positions of ILGA member organizations on pedophilia and report to the Economic and Social Council. The Council is to act on the issue of reinstatement if it has received “convincing assurances that neither the Association nor its member organizations or subsidiaries promote, condone or seek the legalization of pedophilia.” 131
During this period ILGA had only one part-time staff person. It did not have adequate information on its member organizations to respond quickly to the ECOSOC resolution. Early in 1995 it circulated a questionnaire to member organizations with the annual request for membership dues. The issues were revisited at the 1995 world conference in Rio de Janeiro. A new general resolution on pedophilia was passed, this time by consensus. It supported “informed, rational and ongoing discussion of the social, legal, psychological and moral issues involved in pedophilia. . . .” The central provisions resolved
2. To reaffirm that the ILGA, whilst it recognizes the right of every individual, regardless of age, to explore and develop their own sexuality, believes strongly that every child has the right to protection from sexual exploitation and abuse and urges member organizations to consider how best children and young people can be empowered and supported against sexual abuse.
3. To categorically state that the ILGA does not in any way seek to promote or seek the legalization of pedophilia. 132
Member organizations must accept the provisions of the resolution, and a new constitutional statement of ILGA’s committment to international human rights standards, or face expulsion. When these new provisions are implemented, ILGA will again meet with the NGO committee of the Economic and Social Council to seek reinstatement. In October 1995, the Munich organization VSG withdrew from membership in ILGA, issuing a press release condemning ILGA’s position on pedophilia.
The issue of accreditation for a specialized UN conference emerged again in relation to the Fourth World Conference on Women, held in Beijing in September 1995. With ILGA’s suspension, lesbian participation was [End Page 102] much more vulnerable to political control. News accounts indicated the intention of the Chinese hosts
[t]o deny access to Tibetans, Taiwanese, lesbians, Asian women’s rights groups and some organizations militantly opposed to abortion. . . . 133
Nevertheless, as noted earlier, eleven lesbian or lesbian and gay organizations were accredited to the Conference and the NGO Forum.
2. Other Nongovernmental Organizations
There has been a notable reluctance on the part of human rights nongovernmental organizations (NGOs) to include issues of lesbian and gay rights in their work, but there are now a few exceptions.
Amnesty International, the best known international human rights NGO, underwent a seventeen year debate over whether to expand its mandate to treat individuals imprisoned for homosexual acts as prisoners of conscience. The long fight led to the controversial decision in 1991 in which the International Council
[de]cides to consider for adoption as prisoners of conscience persons who are imprisoned solely because of their homosexuality, including the practice of homosexual acts in private between consenting adults; Realizing fully that this decision increases the difficulty of the development of our movement in many parts of the world instruct the Internal Executive Council to draft guidelines regarding Amnesty International action on behalf of imprisoned homosexuals, taking into consideration the cultural background of various areas where we have sections and groups or countries in which Amnesty International is proposing development; Further instructs the Internal Executive Council to draft as a matter of urgency, a preliminary question and answer leaflet on the subject before the end of the International Council meeting. 134
The resolution had been opposed, in part, on the basis that lesbian and gay rights were not an accepted part of international human rights law, and in part by fears that the subject would alienate support in major parts of the world outside Europe and North America. The organization was slow in preparing guidelines to implement the resolution, resulting in scepticism over its commitment to the new mandate. But the guidelines were prepared [End Page 103] and Amnesty is acting on the resolution. The US chapter of Amnesty released a report on antigay persecution in February 1994, based on research done at the international offices in London. 135
Human Rights Watch, now a major organization monitoring human rights practices, also modified its mandate to increase attention to sexual orientation issues. A 1994 memorandum states the policy:
Human Rights Watch opposes state-sponsored and state-tolerated violence, detention and prosecution of individuals because of their sexual identity, sexual orientation or private sexual practices. Human Rights Watch grounds this policy in the right to life, liberty and security of the person (Universal Declaration of Human Rights, Article 3; International Covenant on Civil and Political Rights, Articles 6 and 9), rights of freedom of expression and association (UDHR 19 and 22; ICCPR 19 and 22), the right against arbitrary detention (UDHR 9, ICCPR 9), the right to privacy (UDHR 12, ICCPR 17) and the prohibition of discrimination on the basis of status (UDHR 2, ICCPR 2, 26). 136
The International Gay and Lesbian Human Rights Commission, based in San Francisco, is the leading lesbian and gay monitoring organization, involved in research, documentation, and bimonthly “action alerts.” IGLHRC has published country specific reports on Russia, Colombia, Brazil, and Romania. The organization has a thirty member international advisory board. IGLHRC, an active member of ILGA, has not sought seperate accreditation at the United Nations.
The Metropolitan Community Church, whose members are predominantly lesbian and gay, has observer status at the World Council of Churches. The World Council has begun some internal educational programs on lesbian and gay issues, but the organization has not formulated any public policy statements on lesbian and gay issues. In 1992 the World Council of Churches published a compilation of statements from member churches on sexuality, which included a section on homosexuality. 137 In 1994 the World Council held a staff workshop on sexual orientation, a preliminary step on the road to addressing homosexual issues. 138
Human Rights Advocates, based in San Francisco, accredited the ILGA speaker at the 1992 session of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, the first openly homosexual speaker at the United Nations. The Women’s International League for Peace [End Page 104] and Freedom, with offices in Geneva, has a concern with lesbian issues included in its mandate. It coordinated a joint statement of five international NGOs on lesbian and gay rights in the Sub-Commission in 1992, to support the HRA/ILGA statement made earlier in the same session. 139 Additional NGOs supporting lesbian and gay rights are the International Helsinki Federation for Human Rights, the International Society for Human Rights, and the Helsinki Citizens Assembly.
3. Human Rights Monitoring by States
A major regular assessment of the human rights performance of states is the “Country Reports” issued by the US State Department early each year. In 1993, all US posts outside the country were instructed to consider antigay violence in preparing their part of the annual report. 140
J. The Prospects for Change
Human rights work at the international level is still selective, both in terms of the States that can be examined and in terms of subject matter. Many issues are avoided, such as discrimination against women in Muslim States, the lack of democracy in Saudi Arabia, racism in the United States or Brazil, the caste system in South Asia, and the human rights performances of the major powers.
These limits on what can be discussed at the United Nations are not fixed. Two decades ago even the most informed observers would have laughed at the suggestion that indigenous people could get a forum within the United Nations. But that forum has gradually developed and a surprisingly strong draft declaration on the rights of indigenous peoples has emerged. The decisions in Dudgeon and Toonen make it clear that in technical terms, lesbian and gay rights issues are on the international human rights agenda. Those decisions legitimate anyone who raises lesbian and gay issues. And some states have begun to regularly raise lesbian and gay issues as the material in this paper indicates.
In advancing a new issue it is essential to have effective lobbying and lead states. The northern European states which have gone the furthest in recognizing lesbian and gay rights seem oddly reticent to push the issues at [End Page 105] the United Nations. Leadership on human rights issues so often falls by default to them. Representatives of the Netherlands have expressed concern with the extent of publicity about Dutch policies on euthanasia and prostitution. They are reluctant to invite more controversy. A number of states are testing the waters, waiting for clearer signals that UN political processes will in fact allow lesbian and gay rights issues to be aired. Australia and Canada have emerged since the 1993 Vienna Conference as the states most committed to broadening UN work in this area. Australian officials talk of getting the issue “on the agenda.” There has been reasonably good support from the Western grouping as a whole. Perhaps we are seeing the gradual development of an informal “like minded group” of states, the members of which clearly expanded at the Beijing women’s conference. This makes it easier for all states involved to speak in favor of lesbian and gay rights. The states which have actually spoken out against lesbian and gay rights are few in number. None are major powers. None are respected actors in international human rights work.
We seem to be at a stage when the consideration of lesbian and gay issues can move into a more serious stage of analysis, investigation, standard setting, and monitoring.
Douglas Sanders is Professor of Law at the University of British Columbia in Vancouver, Canada. He teaches and publishes in the areas of indigenous peoples, international human rights law, and lesbian and gay rights. He has been involved with indigenous legal issues in Canada since 1965, as well as working with the World Council of Indigenous Peoples after its formation in 1975. He has done comparative work on indigenous and tribal issues, including a recent study on tribal policy in India for the Canadian Royal Commission on Aboriginal Peoples. Since 1992 he has represented the International Lesbian and Gay Association at United Nations human rights meetings in Geneva.
1. Since 1992 the author has represented the International Lesbian and Gay Association (ILGA) in various United Nations fora. Information in this article on ILGA and on discussions in particular meetings of United Nations bodies are, in the absence of citations of other sources, drawn from the author’s participation, personal notes, or from internal ILGA sources. When available, citations are supplied for public sources, including the quarterly ILGA Bulletin, the periodic ILGA Euroletter and United Nations publications.
2. Statement by Ms. Shirely Lithgow on behalf of the Australian delegation to the Fifty-First Session of the Commission on Human Rights, Geneva, 27 February 1995. This statement repeats a statement first made on 23 June 1993 at the United Nations World Conference on Human Rights, Vienna, Austria.
3. Alya Z. Kayal et al., The Forty-Fourth Session of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, 15 Hum. Rts. Q. 410, 457 (1993).
4. Only with homophobia are religious, social, and biological explanations still routinely cited to justify discrimination. The black American historian Henry Louis Gates Jr., has commented that “in many ways contemporary homophobia is more virulent than contemporary racism.” Blacklash, New Yorker, 17 May 1993, at 42.
5. The difference in perception of lesbians and gay men has prompted considerable discussion about the exact roots of antihomosexual views, with some arguing that the elimination of sexism would itself end homophobia. See, e.g., Monique Wittig, The Straight Mind and Other Essays (1992).
6. Some similarities exist with members of stigmatized political minorities, such as communists in the West during the early years of the cold war. The ability to “pass” as heterosexual is only possible because of a cultivated blindness on the part of most people to the lesbian women and gay men living and working around them.
7. This self-censorship by Western media is benevolent in intent but perpetuates silence and invisibility, making changes in attitudes and laws more difficult. Two Canadian examples are (a) the unwillingness of the media to report on the open “gay-baiting” of Member of Parliament Svend Robinson by other Members in the Canadian Parliament before Mr. Robinson publicly declared his homosexuality in 1988, and (b) the unwillingness of media to report the public statements of Michael Leshner, a Crown prosecutor, who had brought a case claiming same-sex spousal benefits, that his employer the Attorney General of Ontario, Ian Scott, against whom the case had been brought, was also homosexual. Michael Leshner, The Media Keeps Gay Secrets, Xtra, 31 Mar. 1995, at 1.
8. Dr. Mahathir’s Cure, editorial, Globe and Mail, 26 Sept. 1992, at D6 (quoting from a speech in the United Nations General Assembly). African representatives were seen as the main problem within Amnesty International in the debate on widening its mandate to include individuals imprisoned for homosexual acts.
9. Alfred Kinsey, Sexual Behavior in the Human Male 650–51 (1948). The conclusions of the Kinsey research have still not been fully absorbed in public discourse. Kinsey is constantly cited for the proposition that 10 percent of males are homosexual, but this is a distortion of his conclusions. The distortion serves to sustain the idea that there is a discrete homosexual minority and a separate heterosexual majority. This minoritizing of homosexuals seems to reflect a majority wish to see homosexuals as a distinct “other.”
10. The information on criminal laws in this section is derived from Aart Hendriks et al., The Third Pink Book: A Global View of Lesbian and Gay Liberation and Oppression (Aart Hendriks et al. eds., 1993 [hereinafter The Third Pink Book ]); Eric Heinze, Sexual Orientation; A Human Right (1995); and information from the ILGA Euroletter and from Alexandra Duda (Cologne), and Kurt Krickler (Vienna).
11. When criminal law moved from the national to the republic level in Yugoslavia in 1977 four republics and autonomous provinces decriminalized: Slovenia, Voivodina, Croatia, and Montenegro.
13. Activists Launch Campaign to Repeal Chile’s Sodomy Law, International Gay and Lesbian Human Rights Commission, Emergency Response Network, June 1995, at 1.
14. There are paradoxical examples of jurisdictions enacting nondiscrimination laws without having repealed criminal laws against homosexual acts. This was true in 1994 in South Africa, though the constitutional amendment prohibiting discrimination was assumed to be a de facto repeal of the criminal law. There are also a couple of states in the United States where antidiscrimination provisions co-exist with criminal law prohibitions.
15. The vagueness of the phrase forms the basis of some recent arguments against recognizing “sexual orientation” as a prohibited ground of discrimination. Representatives of the Vatican argued at the Fourth World Conference on Women in Beijing in September 1995, that “sexual orientation” might include pedophilia. Information from Ms. Shelagh Day, NGO representative at the conference of Equality for Gays and Lesbians Everywhere (EGALE) and of the National Association of Women and the Law (of Canada).
16. The Supreme Court of Canada in Egan v. Canada, May 1995, unanimously held that the general equality provision in § 15 of the Constitution Act, 1982, prohibited discrimination against lesbian women and gay men. A majority held that this prohibition of discrimination applied to discrimination against same-sex couples as well as discrimination against individuals.
17. Brazil’s Constitution Up For Review, 4 ILGA Bulletin 4 (1993); Gays Protected in Polish Constitution Draft, 2 ILGA Bulletin 4 (1995).
18. See Douglas Sanders, Constructing Lesbian and Gay Rights, 9 Canadian J. L. & Soc’y 99, 120–35 (1994); Kees Waaldijk, Standard Sequences in the Legal Recognition of Homosexuality—Europe’s Past, Present and Future, 4 Australasian Gay & Lesbian L. Rev., 50–72 (1994). The Supreme Court of Israel ruled in October 1994, that the national airline had to extend spousal benefits to a same-sex partner: Gay couples Ruling Condemned, Vancouver Sun, 14 Dec. 1994, at B4.
19. Marianne Pedersen, Denmark: Homosexual Marriages and New Rules Regarding Separation and Divorce, J. Fam. L. 289 (1991–92); Shiela Rule, A New Law in Demark Permits Gay “Partnerships,” N.Y. Times, 2 Oct. 1989, at B-1.
20. Norway, Second Country to Adopt Partnership Law, 3 ILGA Bulletin 22 (1993); Sweden, Registered Partnership Legislation Enacted, 3 ILGA Bulletin 12 (1994).
21. Scandi-Marriages Recognized by Each Ohter, 3 ILGA Bulletin 16 (1995).
22. These laws do not themselves give legal status to the relationships, but create a formal public record.
23. Institutional Bias, Advocate Magazine, 18 Oct. 1994, at 15.
24. See Susan Boyd, Expanding the “Family” in Family Law: Recent Ontario Proposals on Same Sex Relationships, 7 Canadian J. Women & L. 545 (1994).
25. A bill on registered partnerships was introduced in the Netherlands in June 1994. It would apply to same-sex couples and nonsexual couples who wished to formalize a relationship of interdependency. There is also a proposal for a law on co-custody and joint custody of children. Information from Mr. Kees Waaldijk, Faculty of Law, University of Limberg, Maastricht, Netherlands. See Dutch Government Presents Plans on Partnerships and Family, 36 ILGA Euroletter, Oct. 1995, at 11.
26. Law Reform Commission of the State of Queensland, De Facto Relationships, June 1993; Australian Capital Territory, Discussion Paper on Domestic Relationship Legislation, June 1993. See also Ontario Law Reform Commission, Report on the Rights and Responsibilities of Cohabitants under the Family Law Act, November 1993.
27. Dissenting Judge Walsh in Dudgeon v. United Kingdom, 4 Eur. Ct. H. R. ¶ 17, referred to anti-homosexual views as not differing “materially from those which throughout history conditioned the moral ethos of the Jewish, Christian and Muslim cultures.” Chief Justice Burger, in the United State Supreme Court decision Bowers v. Hardwick, 478 U.S. 186 at 197 (1986) referred to: “millennia of moral teaching” as behind anti-homosexual views. Pope John Paul II has referred to the teachings of the Roman Catholic church on the issue as consistent over time. The representative of Iraq in the NGO Committee of the Economic and Social Council in March 1993, considering the application of the International Lesbian and Gay Association, said that the work of the organization “runs counter to the beliefs of all divine religions. . . .”
28. For a recent text see Eva Cantarella, Bisexuality in the Ancient World (1992). The exact position of Socrates, Plato, and Aristotle on homosexual attraction and homosexual acts became an issue in litigation in the United States on Colorado Constitutional Amendment. See John Finnis, Law, Morality, and “Sexual Orientation,” 69 Notre Dame L. Rev. 1049, 1055–63 (1994).
29. John Boswell, Christianity, Social Tolerance and Homosexuality (1980). Boswell recounts that in the twelfth century there was a homoerotic literature, male prostitution, widespread knowledge that homosexuals held positions of political and ecclesiastical authority and even the rudiments of gay slang. Bowell more recently has published a controversial study on ceremonies of same sex union. John Boswell, Same-Sex Unions in Premodern Europe (1995).
30. The Kama Sutra dates to the fourth to fifth century A.D. See Rakesh Ratti, A Lotus of Another Color 22 (1993).
31. Id. at 31–33.
32. Ihara Saikaku, The Great Mirror of Male Love (1990) (a translation of Nanshoku Okagami of 1687).
33. Bert Hinch, Passions of the Cut Sleeve: The Male Homosexual Tradition in China 2 (1990).
34. See Richard Plant, The Pink Triangle: The Nazi War Against Homosexuality (1986); Frank Rector, The Nazi Extermination of Homosexuals 189 (1981); James D. Steakley, The Homosexual Emancipation Movement in Germany 121 (1975).
35. See, e.g., Arno Schmitt & Jehoeda Sofer, Sexuality and Eroticism Among Males in Moslem Societies (1992).
36. On the American Indian berdache see Will Roscoe, Living the Spirit (1988); Walter Williams, The Spirit and the Flesh: Sexual Diversity in American Indian Culture (1986).
37. Gilbert Herdt, Guardians of the Flutes (1981); Gilbert Herdt, Ritualized Homosexuality in Melanesia (1984).
38. Earlier patterns of the open acceptance of homosexuality, such as in Mogul India, may have been limited to elites.
39. David Halperin, One Hundred Years of Homosexuality (1990). See also Jonathan Katz, The Invention of Heterosexuality (1995); Jeffrey Weeks, Against Nature (1991); Jeffrey Weeks, Sexuality and its Discontents (1985); John D’Emilio, Making Trouble (1992); Gary Kinsman, The Regulation of Desire (1987). Earlier patterns such as those among Muslim rulers in India, would have been confined to elites.
40. Lesbian and gay studies titles have now been published by many university presses in North America, including California, Chicago, Columbia, Duke, Harvard, Indiana, Massachusetts, Minnesota, Princeton, Stanford, Temple, Toronto, and Yale.
41. Some recent arguments in the United States assert that homosexuals are affluent, even claiming that male homosexuals have high amounts of “mileage points” given to frequent flyers on airlines. Research of Ms. Didi Herman, Lecturer, Dept. of Law, University of Keele, United Kingdom.
42. There was no choice. Lesbians and gay men did not initially have the alternative of open participation in general institutions, such as churches, trade unions, or political parties. They would not have been accepted. It is striking that all of the functioning lesbian and gay rights organizations date from after the second World War. In contrast, certain of the organizations concerned with racism, women’s rights, childrens rights, indigenous rights, and slavery have much longer histories.
43. See Martin Duberman, Stonewall (1994); John D’Emilio, Sexual Politics, Sexual Communities (1983).
44. See James D. Wilets, International Human Rights Law and Sexual Orientation, 18 Hastings Int’l & Comp. L. Rev. 1, 86 (1994).
45. Dudgeon v. United Kingdom, supra note 27, at 149. This was the first case involving homosexuality to be heard by the court. On the European human rights system and homosexual issues, see Pieter van Dijk, The Treatment of Homosexuals Under the European Convention on Human Rights, in Homosexuality: A European Community Issue 179 (Kees Waaldijk & Andrew Clapham eds., International Studies in Human Rights Vol. 26, 1993); Laurence R. Helfer, Finding a Consensus on Equality: The Homosexual Age of Consent and the European Convention on Human Rights, 65 N.Y.U. L. Rev. 1044 (1990).
46. European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 8 (1), opened for signature 4 Nov. 1950, Eur.T.S. No. 5, 213 U.N.T.S. 221 ( entered into force 3 Sept. 1953) [hereinafter European Convention]. The decision departed from earlier decisions of the Commission upholding German criminal law. Privacy is obviously an inadequate basis for constructing a broader regime of equality for homosexuals, because heterosexual relationships are publicly recognized, socially and legally, in all societies.
48. Such laws were said to be no longer considered necessary or appropriate in the “great majority” of the member states. The dissenting judgment of judge Walsh, paragraph 16, criticized the reference to the law in other European States in the majority judgment as establishing “a Euro-norm.” The four dissenting judges were from Ireland, Cyprus, Austria, and Portugal.
49. 13 Eur. Ct. H.R., at 186 (1991).
50. 16 Eur. Ct. H.R., at 485 (1993). Cyprus had stopped laying charges against private homosexual activity after the Dudgeon decision, but had not repealed the criminal prohibition. Id. The government of Cyprus conceded that the prohibition was contrary to the Constitution of Cypress, under which treaty obligations were superior to domestic law. Id. The government did not try to justify the law, arguing only that its questionable legal status and the policy against prosecution resulted in no interference with the rights of the applicant. Id.
51. A ban on homosexuals serving in the armed forces was upheld in 1983 in B. v. United Kingdom, App. No. 9237/81, 34 Eur. Comm’n H.R. Dec. & Rep. 68 (1983). Unequal ages of consent for homosexual and heterosexual acts have been upheld a number of times. See van Dijk, supra note 45, at 195–96 (commenting on the disparity between the holdings of the Commission and the positions of both the European Parliament and the Parliamentary Assembly of the Council of Europe on the age of consent issue).
52. In contrast article 26 of the International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, 999 U.N.T.S. 171 ( entered into force 23 Mar. 1976), G.A. Res. 2200 (XXI), 21 U.N. FAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966) [hereinafter ICCPR] is a general equality provision. See van Dijk, supra note 45, at 204. Van Dijk is hopeful that the Commission and Court will continue in the direction of giving Article 14 an “autonomous” character. The firing of a teacher for publicly discussing her homosexuality was upheld in X v. Belgium, App. No. 11389/85, (1988), illustrating the nar-rowness of the grounds that can be argued successfully at present. Another equality issue that would be outside the Convention is the antiprostitution law in Greece which applies only to male homosexual prostitution.
53. Van Dijk, supra note 45, at 203 thinks it “not unlikely” that the Court will not follow the Commission on this point. Same-sex partner immigration rights were denied in X. & Y. v. United Kingdom, App. No. 9369/81, 32 Eur. Comm’n H.R. Dec. & Rep. 220 (1983), and in X and Y v. United Kingdom, App. No. 12513/86 (unpublished, discussed in van Dijk, supra note 45, at 191–92). Same-sex partner successor rights to accommodation were denied in S. v. United Kingdom, App. No. 11716/85, 47 Eur. Comm’n H.R. Dec. & Rep. 274 (1986). Denial of access to marriage was upheld in Rees, 106 Eur. Ct. H.R. (ser. A), at 19 (1986). A ban on a lesbian partner assuming parental rights in relation to the child of her partner was upheld in Kerkhoven v. The Netherlands, App. No. 15666/89 (1992), when the Commission declared the matter inadmissible.
54. When the case began the age of consent for male homosexual activity was twenty-one, while the age for heterosexual or lesbian activity was sixteen. Since the case began the United Kingdom lowered the age of consent for male homosexual activity to eighteen. See David Smith, European Challenge of IJ’s Gay Age of Consent Law, Gay Times, Mar. 1995, at 23.
55. See Judging the Level of Harm, Gay Times, Mar. 1995, at 30.
56. On the proposal see Laurence R. Helfer, Lesbian and Gay Rights as Human Rights: Strategies for a United Europe, 32 Va. J. Int’l L. 157 (1991). The need for an additional protocol has been questioned on the basis that “sex” and “other status” in Article 14 of the European Convention could be interpreted to include “sexual orientation.” As indicated earlier, while Article 14 is not a general equality provision, van Dijk has suggested that a process of treating it as an “autonomous” article could progress and give protection to lesbians and gay men in the future.
57. Letter of Klaus Schumann, Head of External Relations Division, Council of Europe, to Lisa Power, Strasbourg, 28 June 1990, in 7 ILGA Euroletter, 28 July 1992.
58. European Parliamentary Assembly, Doc. No. 4755, 1 Oct. 1981.
59. European Parliamentary Assembly, 33rd Ordinary Sess., Recommendation 924 (1981) & Res. 756 (1981), both of 1 Oct. 1981. Recommendation 924 has not been adopted by the Committee of Ministers.
60. 35th Sess., Res. 812.
61. Council of Europe, The Council of Europe and Human Rights, Report Prepared by the Counsel of Europe for the World Conference on Human Rights 4 (1993).
62. European Parliament, 1984–85 Debates (Doc. Nos. 1-311, 12) Resolution of 13 Mar. 1984; OJ 1984 C 104/46-48.
63. This represented the first time the European Commission had included a reference to lesbians and gay men in a proposal. The European Parliament approved the Charter with 193 votes in favor, no votes against, and twenty-six abstentions. See generally Lammy Betten, Rights in the Workplace, in Homosexuality: A European Community Issue, supra note 45, at 335, 351–52.
64. Rapporteur: Mrs. Claudia Roth, Report of the Committee on Civil Liberties and Internal Affairs on Equal Rights for Homosexuals and Lesbians in the European Community, U.N. Doc. EN\RR\244\244267 (26 Jan. 1994).
65. Resolution on equal rights for homosexuals and lesbians in the European Community, OJ 1994 C 61/40, Res. No A3-0028/94 (8 Feb. 1994).
66. The resolution is reprinted in 2 ILGA Bulletin 22–23 (1994).
68. European patterns on adoption laws restrict adoption to married couples. The registered partnership laws in Denmark, Norway, and Sweden leave that restriction in place, specifying that a registered partnership is not to be considered marriage for purposes of adoption laws.
69. This kind of recognition has spread rapidly as government health departments recognize that they cannot mount effective anti HIV/AIDS programs unless they have knowledge of and support from gay men. This seeking out of assistance from gay men has occurred even in China, which in the past denied that there were homosexuals in the country.
70. Council Directive 76/207 EEC. Since this directive goes beyond the specific provisions of the Treaty of Rome it has been argued that the Council could, as well, mandate equality rights in employment for lesbians and gay men. See Andrew Clapham & J.H.H. Weiler, Lesbians and Gay Men in the European Community Legal Order, in Homosexuality: A European Community Issue, supra note 45, at 7, 20.
71. Netherlands v. Reed, E.C.R. 1283 (17 Apr. 1986).
72. EP Extends Benefits, Endorses Gay Protections, 3 ILGA Bulletin 16 (1995).
73. The information in this section on the meetings of CSCE/OSCE, unless otherwise referenced, is from the files of Mr. Kurt Krickler, of the organization Hosi Wien, Vienna, Austria, who regularly attended the CSCE/OSCE meetings on behalf of ILGA. On the opening day of the Madrid Follow-Up Meeting in 1980, Spanish and French lesbian and gay groups held a press conference and a demonstration. The openly gay writer Dominique Fernandez spoke at the CSCE Cultural Forum in Budapest in 1985. A letter from the Vienna gay organization Hosi Wien was circulated to the delegations at the CSCE Follow-Up Meeting in Vienna, 1986–1989. ILGA held parallel meetings during the CSCE human dimension meeting in Copenhagen in 1990. See CSCE Lobbying History and Plan, 3 ILGA Bulletin 19–20 (1994).
74. RFSL, the national Swedish lesbian and gay organization, and a Moscow group, ARGO, organized the meetings. There was funding from the Swedish foreign ministry. The US based International Gay and Lesbian Human Rights Commission participated. Svend Robinson, an openly gay member of parliament, was in the Canadian government delegation. Over twenty-five of the thirty-eight government delegations were contacted by lesbian and gay representatives. Five government delegations referred to lesbian and gay issues positively in statements: Denmark, Norway, Finland, Canada, and Sweden. No delegation proposed any resolution on the issues.
76. ILGA Statement at CSCE Conference, 1 ILGA Bulletin 8 (1993). The ILGA representative was Kurt Krickler of Hosi Wien, Vienna. The statement circulated at the conference on the homosexual emancipation program of the City of Amsterdam is reprinted in 11 ILGA Euroletter, 6 Dec. 1992.
77. Quoted in ILGA, CSCE Lobbying Paper, June 1994. See First Implementation Meeting on Human Dimension of CSCE, 5 ILGA Bulletin 10 (1993).
78. See 30 ILGA Euroletter, Jan. 1995.
79. See 33 ILGA Euroletter, May 1995.
80. OSCE Success: A Victory for ILGA, 3 ILGA Bulletin 14 (1995); Kurt Krickler, ILGA Input to OSCE Meeting, 36 ILGA Euroletter, Oct. 1995, at 2.
81. See LBL et al., Lesbian Visibility; With Special Reference to Lesbians in the Labour Market (Nov. 1993); see also Homosexuality: A European Community Issue, supra note 45. Funding for the Lesbian Visibility study came from the Commission of the European Communities’ Equal Opportunities Unit and from LBL, the Danish National Association for Gays and Lesbians. The work was done by individuals connected with LBL, which served at the time as the Women’s Secretariat for the International Lesbian and Gay Association. The second study was commissioned and paid for by the Commission of the European Communities, the funding chanelled through the European Human Rights Foundation. Again there were personal connections to the International Lesbian and Gay Association. Slightly earlier funding from the European Human Rights Foundation and from several political groups in the European Parliament allowed the research and publication of the “Iceberg Project,” which assessed laws in Europe.
82. The ILGA/Phare-Tacis Anti-Discrimination Project 1995, 4 ILGA Bulletin 8 (1994).
83. The report was received by the Sub-Commission as U.N. ESCOR, Comm’n on Hum. Rts., 40th Sess., U.N. Doc. E/CN.4/Sub.2/1988/31 and discussed on 30 Aug. 1988. In 1993 the author made inquiries in Geneva about the report. Almost no one remembered it. No one could identify the background or qualifications of Mr. Fernand-Laurent.
84. Information from Mr. Yves de Matteis, Dialogai, Geneva.
85. Russel L. Barsh, Measuring Human Rights: Problems of Methodology and Purpose, 15 Hum. Rts. Q. 87, 88 (1993).
86. U.N. ESCOR, Comm’n on Hum. Rts., 44th Sess., at ¶ 185, E/CN.4/Sub.2/1992/16 (1992).
87. On file with author.
88. Information from Ms. Valerie Raymond, Government of Canada, and Ms. Shelagh Day, NGO delegate at the Conference. The Vienna preparatory meeting was organized by the Economic Commission for Europe and included representatives from Eastern and Western Europe, as well as Canada and the United States. On the New York meeting, see Peter O’Neil, Lesbian Rights Promoted by Canada on World Stage, Vancouver Sun, 30 Mar. 1995, at 4; International Gay and Lesbian Human Rights Commission press release, Lesbian Activists Prepare for Beijing, 5 May 1995.
89. Information from Ms. Shelagh Day, NGO representative for Equality for Gays and Lesbians Everywhere (EGALE) and the National Association of Women and the Law (of Canada). See also Rod Mickleburgh, Lesbians and Fish Stories Conference Highlights, Globe and Mail, 15 Sept. 1995, at 9; Jonathan Manthorpe, Lesbianism as ‘right’ and Elusive Goal, Vancouver Sun, 14 Sept. 1995, at 11; Canadian Press, UN Officers Detain 2 Canadians, Vancouver Sun, 9 Sept. 1995, at 1; Jocelyne Dubois, Lesbians Ready for Beijing, Xtra, 18 Aug. 1995, at 18.
90. Information from Ms. Shelagh Day, NGO representative, who attended the drafting committee meeting. See also Rod Mickleburgh, Women’s Rights Spelled Out Clearly, Globe and Mail, 16 Sept. 1995, 1; Patrick Tyler, Forum on Women Agrees on Goals, N.Y. Times, 15 Sept. 1995, at 1.
91. Australia, Barbados, Bolivia, Brazil, Canada, Chile, Colombia, Cook Islands, Cuba, European Union (fifteen states), Israel, Jamaica, Latvia, New Zealand, Norway, Slovenia, South Africa, Switzerland, and the United States. Ms. Rachel Rosenbloom of the International Gay and Lesbian Human Rights Commission noted that at the previous world conference on women, ten years earlier, only the Netherlands had spoken in support of the rights of lesbians. Lesbians Hail Beijing ‘Victory,’ Xtra, 29 Sept. 1995, at 21.
92. Algeria, Bangladesh, Belize, Benin, Cote d’Ivoire, Egypt, Ghana, Guatemala, Iran, Jordan, Kuwait, Libya, Nigeria, Senegal, Sudan, Syria, Uganda, United Arab Emerites, Venezuela, and Yemen.
93. Kurt Krickler, ILGA’s UN activities also started off in Vienna, 2 ILGA Bulletin 11 (1994).
94. U.N. GAOR, Hum. Rts. Comm.,37th Sess. at 161, U.N. Doc. A/37/40 (1982).
95. Id. ¶¶ 10.3–10.4.
96. The views of Opsahl, Lallah, and Tarnopolsky are set out in an appendix. They agree with the majority in outcome, ruling that the standards in the Covenant did not apply to privately controlled media.
98. U.N. GAOR, U.N. Doc. CCPR/C/50/D/488/1992 (views of 31 Mar. 1994).
99. Id. ¶ 2.5.
101. Tasmania conceded that “sexual orientation” would be included in “other status,” while the Australian government sought guidance from the Committee on this issue. Id. ¶ 6.9.
102. Id. ¶ 8.5.
103. Id. ¶¶ 6.6–6.7.
104. Id. ¶ 8.6.
105. Id. ¶ 8.7. In paragraph 11 the Committee stated that it was not ruling whether there had been a violation of Article 26 of the ICCPR.
106. The concurring separate opinion of Mr. Bertil Wennergren states concurrence with the Committee’s view that “sex” includes “sexual orientation,” on the basis that the “common denominator” for the grounds race, colour and sex “are biological or genetic factors.” Id. This approach more logically leads to including “sexual orientation” within “other status” on the basis that it is an analogous ground. He also suggests that the failure of the Tasmanian law to prohibit lesbian activity constitutes discrimination on the basis of sex. Id.
107. See generally Anna Funder, The Toonen Case, 5 Pub. L. Rev. 156 (1994) (criticizing the ruling that “sex” includes “sexual orientation,” noting that an argument to this effect was never put to the Committee).
108. The decision of the Australian High Court in Tasmania v. Commonwealth, 158 C.L.R. 1 (1983) (Aust.) upholds a power of the national parliament to override matters of state law when implementing international law. This is the “foreign affairs” power which was invoked by the national government in enacting the Human Rights (Sexual Conduct) Act in 1994 which invalidates laws which constitute an “arbitrary interference” with privacy, tracking the words of the decision of the Human Rights Committee in the Toonen case. See Brian R. Opeskin & Donald R. Rothwell, The Impact of Treaties on Australian Federalism, 27 Case W. Res. J. Int’l L. 1, 49–54 (1995) (discussing the government’s response to the Toonen decision).
109. Australia Takes Action, Advocate Magazine, 29 Nov. 1994, at 15. Additional information from Wayne Morgan, Lecturer in Law, Faculty of Law, University of Melbourne, Australia.
110. U.N. GAOR, U.N. Doc. CCPR/C/79/Add 50, 6 Apr. 1995.
111. See ¶ 6.6, Views of the Human Rights Committee in Toonen v. Australia, U.N. GAOR, U.N. Doc. CCPR/C/50/D/488/1992.
112. See, for example, Statement of Dr. M.H. Merson, Executive Director, Global Programme on Aids, to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Agenda item 4, Aug. 1994 (on file with author).
113. Argentina: CHA Goes to the Inter American Court of Human Rights, 2 ILGA Bulletin 15 (1992).
114. Vince Quackenbush, Gay Rights Victory in Argentina, San Francisco Sentinel, 26 Mar. 1992; Letter of 7 June 1995, from William Courson, Executive Director, Magnus Hirschfeld Centre for Human Rights, Montclair, New Jersey (on file with author).
115. Gay Honduran Aids Group Rebuffed, Passport Magazine, June/July 1995, at 5; Gay Group Denied Legal Registration in Costa Rica, International Lesbian and Gay Human Rights Commission, Emergency Response Network 1 (June 1995).
116. Zimbabwe Under Scrutiny, 1 ILGA Bulletin 7 (1995).
117. Derrick Z. Jackson, Mugabe’s Anti-Gay Tirade, Globe and Mail, 14 Aug. 1995, at A17.
118. Mugabe Renews Attack on Gays, Globe and Mail, 12 Aug. 1995, at A8; President Vows to Arrest Visiting Gay Activists, Vancouver Sun, 17 Aug. 1995, at A11.
119. Zimbabwe Leader Condemns Homosexuality, N.Y. Times, 2 Aug. 1995, at A7.
120. Convention Relating to the Status of Refugees, adopted 28 July 1951, UN, reprinted in 1 Human Rights: A Compilation of International Instruments 634, 635 U.N. Doc. ST/HR/1/Rev.4 (1993).
121. Clyde H. Farnsworth, Argentine Homosexual Gets Refugee Status in Canada, N.Y. Times, 14 Jan. 1992, at A10; Estanislao Oziewicz, Homosexual Granted Status as Refugee, Globe and Mail, 11 Jan. 1992, at 1; James Brooke, In Live-and-Let-Live Land, Gay People Are Slain, N.Y. Times, 12 Aug. 1993, at A4; Australian Asylum to Chinese Gay Couple, Passport, June 1992, at 3. See Suzanne B. Goldberg, Give Me Liberty or Give Me Death: Political Asylum and the Global Persecution of Lesbians and Gay Men, 26 Cornell Int’l L. J. 605 (1993). The Supreme Court of Canada recognized that homosexuals came within the phrase “social groups” in Canada v. Ward, 2 S.C.R. 689 (Can. 1993).
122. Western news stories which discussed the refusal to accredit Human Rights Watch did not mention the refusal to accredit ILGA at the same meeting. See Paul Lewis, Faction in U.N. Panel Blocks a Rights Group, N.Y. Times, 3 Feb. 1991, at A11; A Gang of Six at the U.N., N.Y. Times, 7 Feb. 1991, at A24. On the ILGA refusal see Chris Bull, Religious Opposition Derails Gay Group’s U.N. Consultancy Bid, The Advocate, 12 Mar. 1991, at 23.
123. The other supporters were surprising as well. Cuba, while not having criminal prohibitions, had an antihomosexual tradition of state policies. The Russian Federation had in fact just decriminalized, but the decree had not yet been made public when the committee met.
124. Three abstained: Ethiopia, Libya, and the Philippines. Three were not present: Burundi, Cyprus, and Nicaragua. Libya referred to a provision in its constitution which opposed discrimination as the reason it would not vote against accreditation.
125. ILGA’s Hot Summer at the United Nations, 4 ILGA Bulletin 20 (1993).
126. The story first appeared in a right wing antihomosexual magazine Lambda Report, issue of September 1993. The story resulted in an interview with a representative of NAMBLA and of ILGA on the popular CNN television program Larry King Live. See Duncan Osborne, The Trouble with NAMBLA, The Advocate, 14 Dec. 1993, at 40.
127. The executive body of ILGA restated its position on the protection of children in a statement of 7 Nov. 1993.
128. The initial United States position modified in the negotiations in part because of opposition from Canada and Australia and perhaps certain other states to the details of the proposed US resolution. The agreement is set out in a letter of 3 Dec. 1993 from Hans Hjerpekjon, Secretary General of ILGA, to John Blaney of the United States Mission to the United Nations in New York.
129. 140 Cong. Rec. S26 (daily ed. 25 Jan. 1994).
130. Because news of the Helms amendment had appeared in the International Herald Tribune, the ILGA representative was only given the appropriate badge after an interview with a UN official and only after the US delegation was asked whether they had any objection to ILGAs participation.
131. ECOSOC Res. 1994/50, 16 Sept. 1994.
132. On file with author. See also ILGA and the United Nations, 3 ILGA Bulletin 6 (1995).
133. Barbara Crossette, Unofficial Groups Facing Barriers to U.N. Parley on Women, N.Y. Times, 4 Apr. 1995, at A3; see also Barbara Crossette, U.N. Talks on Women Under Fire: Vatican and China Seek to Bar Critics, N.Y. Times, 17 Mar. 1995, at A7.
134. See Masha Gessen, Amnesty International Adopts Lesbians and Gay Men, The Advocate, 22 Oct. 1991, at 52; see also Peter R. Baehr, Amnesty International and Its Self-Imposed Limited Mandate, 12 Neth. Q. Hum. Rts. 5 (1994); Xtra, Nov. 1991, at 5.
135. Amnesty International, USA, Breaking the Silence: Human Rights Violations Based on Sexual Orientation (1994).
137. Robin Smith, Living in Covenant with God and One Another (1990).
138. Alan Brash, a former Deputy General Secretary of the Council presented a paper on the issues, carefully marked “For Internal Use Only: This is Not an Official WCC Document” (on file with author).
139. Joint NGO Statement to UN, 4 ILGA Bulletin 11 (1992).
140. See Rick Harding, Feds Pledge to Add Antigay Incidents to Rights Report, The Advocate, 21 May 1991, at 24.