20 August 2014

Africa: LGBTI Rights - Still Not There Yet

Photo: Magnus Manske/Flickr
Ugandan President Yoweri Museveni

In recent years, the world has seen enormous human rights gains with respect to sexual orientation and gender identity and expression. However, there have also been substantial setbacks - ranging from discriminatory legislation, to impunity for brutal violence against lesbian, gay, bisexual, transgender, and intersex (LGBTI) people.

Charles Radcliffe, chief of the Global Issues Section at the UN Office of the High Commissioner for Human Rights (OHCHR), noted: "Supporting LGBT rights work around the world is about recognizing that hostilities toward LGBT people are deeply ingrained in societies and that changing those mindsets and protecting these people is the duty of governments."

Same-sex marriage is now legal in 17 countries and parts of two others; a handful of countries legally recognize gender based on self-identification alone, with Argentina and Nepal leading the way and Denmark recently joining their ranks.

A 2014 Indian Supreme Court judgment in favour of transgender rights showed what one legal scholar, gesturing to Nepali and Pakistani court cases, called "the possibility of developing a unique South Asian jurisprudence on transgender rights."

The India, Nepal and Pakistan cases established legally recognized third gender categories.

The African Commission on Human and Peoples' Rights in May 2014 issued a resolution on "protection against violence and other human rights violations against persons on the basis of their real or imputed sexual orientation or gender identity". In June the Organization of American States passed a resolution on "human rights, sexual orientation, gender identity and expression."

But 76 countries criminalize homosexuality in some way, and virtually every country in the world retains legal provisions that impinge on the rights of transgender people - exposing them to some of the highest rates of violence of any group of people in the world. Intersex people are often subjected to harmful "corrective" surgeries without their consent.

In December 2013 the Indian Supreme Court put the country back on the list of places where consensual same-sex behaviour is against the law. That same month, Uganda's parliament passed an "Anti-Homosexuality Act" (AHA).

Sexual Minorities Uganda (SMUG) published a harrowing assessment - From Tyranny to Torment - of the law's impact on the lives of LGBT Ugandans, including arbitrary arrests, police abuse and extortion, loss of employment, evictions and homelessness, and LGBT people fleeing the country. (On 1 August Uganda's Constitutional Court struck down the AHA on procedural grounds saying the parliament had not reached quorum when it passed the act.)

In early 2014, Nigeria passed a "Same-sex Marriage Prohibition Bill," which imposes prison sentences for people who enter into same-sex unions or aid such practices or LGBT NGOs.

Activists have drawn attention to insidious measures to curtail LGBTI people's freedoms, including campaigns against Russia's repeated attempts to table a UN Human Rights Council resolution on "traditional values", which has been called a "smokescreen to obscure and legitimise the exclusion of minority and disfranchised groups in society". In June 2013 Russia passed a law that prohibits "propaganda for nontraditional sexual relationships".

Debates over the imposition of LGBTI rights as "Western" are widespread, and peak during flashpoint moments such as Uganda's AHA. One analyst pointed to the heavy influence of US-based evangelicals in the debates over sexuality in Uganda, to the tune of millions of dollars of funding.

Ugandan President Yoweri Museveni dismissed broad criticism of the law by Western governments as "telling a married man how to run his house". Another observer argued: "international action surrounding the bill seemed to have spawned ... turning the legislation and its attendant homophobia into symbols of national self-determination."

Historian Marc Epprecht, in his book Sexuality and Social Justice in Africa, argued: "The rise of political and religious homophobia is just one aspect of such scapegoating often dovetailing closely with anti-feminism, blame-the-West-for-everything and other xenophobic rhetoric."

He argued: "The potential for backlash against 'gay imperialism' from the West is all the greater when Western media accounts and well-meaning activists and donors focus solely on frustrations and setbacks, always assume the worst, and fail to praise or appear to even notice success stories."

Moves by international agencies have sparked debates over proper intervention methods to protect and promote LGBTI rights.

For example, in the wake of Uganda's AHA, the World Bank suspended a US$90 million loan to the country "to ensure that the development objectives would not be adversely affected by the enactment of this new law". Bank president Jim Kim called the law "institutionalized discrimination" and said such laws harm development.

Some criticized the announcement, arguing that it was a misguided move for a financial institution or that, because it was a maternal mortality loan, it missed its target. Ugandan LGBTI rights activists published guidelines for engagement in the wake of the bill, including asking for aid not to be cut.

The local and the global

International action requires attention to local nuance, activists say.

"What happens overseas with regards to LGBT rights has little impact on what happens here in Indonesia. We have our own strategies," said Hartoyo, an Indonesian activist who was tortured in 2007 by police and civilians who caught him living with his male partner. Indonesia does not explicitly criminalize homosexuality. However, according to a 2014 report by the UN Development Programme (UNDP), "police generally fail to protect LGBT people from attacks."

"The global movement should focus on violence and not only get into the issue of marriage," Hartoyo argued. "It will bring up a lot of challenges and enemies," he said, recalling an open letter he wrote in 2013 after a scholar addressing Indonesia's parliament declared same-sex marriage a Western import.

Neela Ghoshal, senior researcher in the LGBT rights programme at Human Rights Watch in Nairobi cautioned: "As the US- and Europe-based LGBT movements accomplish a lot of what they've been working for at home, they're discovering the rest of the world and trying to help - and that kind of commitment doesn't necessarily mean they're developing their engagements in the most constructive way."

Ghoshal points to a 2013 project she worked on in Tanzania, which highlighted abuses against sex workers, people who use drugs, and the LGBTI community. "Given that the three groups were experiencing very similar forms of discrimination and already working in solidarity together, it didn't make sense to just focus on LGBTI," she said.

Jessica Stern, the executive director of the International Gay and Lesbian Human Rights Commission (IGLHRC), recounted: "Once while visiting a country that still had a sodomy law in place, I asked the local activists why they weren't campaigning against it. It seemed logical to me, they seemed well-positioned with allies in government to get it repealed." But, Stern said, "the activists said they were more concerned about family violence - that the sodomy law wasn't their biggest problem at the moment."

Azza Sultan, chairperson of Bedayaa, an organization working with sexual and gender minorities in Nile Valley areas of Egypt and Sudan, explained: "The context in the Middle East and North Africa and the political environment is completely different [from that in which many Western activists operate], which creates different priorities for our movement."

She pointed to Bedayaa's "safe spaces" and psychological support programmes, and networking with other organizations to combat "the ignorance and fear of working on sensitive issues such as homosexuality among other activists and human rights defenders in our countries."

According to Tarek Zeidan, an organizer at Helem, an LGBT organization in Lebanon: "Trying to measure LGBT rights progress by metrics such as marriage or other visibility factors can be misleading."

On 28 July 2012, 36 men were arrested under Article 534 of the Lebanese penal code, which criminalizes "sex against nature" in a Beirut movie theatre and subjected to rectal exams "conducted by forensic doctors on orders of the public prosecutor to 'prove' whether a person has engaged in homosexual sex."

"After the government got a lot of negative attention for this event, they issued a public amendment to the rules and regulations for doctors to ban the tests, and judges were no longer allowed to take such tests into consideration in cases," Zeidan said.

Azusa Yamashita, an activist in Morioka, Japan, told IRIN that socio-economic indicators used as proxies for how LGBTI people are treated can obscure reality.

"We hear pretty often from our fellow Japanese, even among activists, that because we are an affluent and industrialized country, human rights problems don't happen here," she explained, pointing to a 2014 IGLHRC report that documented violence against and intolerance of lesbian and bisexual women, and transgender people in Japan, Malaysia, the Philippines, Pakistan, and Sri Lanka.

According to Stern, IGHLRC's director, "Violence was horribly pervasive in every country we worked on. In Sri Lanka, for example, two thirds of our respondents reported physical violence, half reported sexual violence, and a third reported attempting suicide."

"Most of our interviewees in Japan told us of horrible violence in their lives, but it gets taken for granted so frequently as just a normal aspect of life," Yamashita said.

UN momentum

"The UN has diplomatic dialogues all over the world and mentions of LGBT rights have come up in those situations," explained OHCHR's Radcliffe. "But activists asked us to make the UN's message more visible - and that the UN system stands behind them all over the world."

In 2013 OHCHR launched the Free and Equal campaign (UNFE), a global effort that recently published a map demonstrating that "LGBTI and related identities have been present in various forms throughout history."

The history of sexuality at the UN has been a complicated path for activists to navigate.

"It's not that sexual politics and human rights issues have come out in the last three years because Ban Ki-moon has started talking about it," Sonia Correa, co-chair of Sexuality Policy Watch, told IRIN from Rio de Janeiro. "There were bold people who started talking about this stuff before it was socially acceptable even within the UN."

Even at the UNHRC, discussions of LGBTI rights have been fraught. Explained Radcliffe: "Historically there was a sense that it was politically divisive and there was no consensus among member states so we shouldn't touch it."

According to Radcliffe, the appointment of Navi Pillay as high commissioner in 2008, a veteran of South Africa's anti-apartheid movement, changed the tone. "Pillay got advice that [LGBT rights] was a polarized issue she should stay away from, but in her opinion this was an issue of discrimination pure and simple," he said.

Mark Bromley, chair of the Council for Global Equality, an advocacy coalition in Washington, said drawing attention to states' behaviours at the UN was crucial.

"In December 2008 a sign-on statement on LGBT rights was being passed around the UN General Assembly. The Bush administration refused to sign it," Bromley said, adding that with the change of administration, by March 2009, the US was signing statements in support of LGBT rights and adjusting its foreign policy bureaucracy to document violations against LGBT people.

In December 2010, UN Secretary-General Ban Ki-moon called for global de-criminalization of homosexuality. In June 2011, the HRC adopted a resolution focusing on violence and discrimination on the basis of sexual orientation and gender identity. Among other things, the resolution commissioned an OHCHR report on LGBT rights around the world.

When the report was discussed during the March 2012 HRC session, representatives from around 50 countries walked out of the room. "A walk-out like that is a very unusual occurrence at the HRC," Radcliffe said, "but more countries chose to stay than leave and the discussion was quite productive."

The road ahead

Mounting research is exposing the often-harsh realities of LGBTI people's lives. A survey design guide led by scholars at the Williams Institute, a US think tank, explained: "Public policy debates have heightened the need for high quality scientific data on... sexual orientation."

From 2009 to 2011, Sexuality Policy Watch held a series of dialogues in Latin America, Asia, and Africa. In 2013 UNDP and the US Agency for International Development (USAID) launched a "participatory review and analysis of the social and legal environments for LGBT people" in nine Asian countries.

In 2014 the Institute for Development Studies published a Sexuality and Social Justice toolkit, and the World Bank commissioned a study that estimated the "cost of homophobia" in India as amounting to a more than $30 billion loss to the country in a single year.

Speaking in July 2014 at the Overseas Development Institute (ODI), a World Bank official explained: "I do not believe high-level public statements and loan conditionality constitute the answer... [D]onors can support [civil society organizations] in this important movement for inclusive development... But it will require for aid donor to fill their own knowledge gap on sexual minorities." ODI's director wrote: "The international response to the anti-gay surge has been muted and ineffective. Western governments have been long on condemnation and short on action."

IGLHCR's Stern says international action - including funding - should be proactive.

"LGBT rights are not going to be realized during a 12-month funding cycle, so you have to invest in organizations and people over time," she argued. And according to Correa, "If you work at an aid agency, you should engage with the gay or transgender person or the sex worker not because you see them as a vector or a particular identity, but because you believe in social justice and realize inclusion is the only way to achieve it."

[This report does not necessarily reflect the views of the United Nations.]

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