By Lawrence C. Moss
Justly fixated as we are on this momentous moment in the United States, as we press for full equality in marriage rights and battle the far right’s attempt to write anti-gay discrimination into the U.S. Constitution, it would be easy to overlook the fight to establish lesbian and gay rights taking place all over the planet. Yet while we are reaching this last frontier in the United States, there are internal battles in most of the countries of the world over issues of gay and lesbian rights, and gay rights has emerged as a major issue in international law and international institutions.
There is enormous disparity in the treatment of gays and lesbians around the world, with over 70 countries, mainly in Africa, Asia and the Middle East, retaining criminal prohibitions against homosexual activity, a few with penalties as severe as death. The spectrum ranges from disapprobation to complete social and legal affirmation: There are countries that still enforce penalties and/or torture and otherwise abuse homosexuals; others that legally allow the conduct but where it is still stigmatized and homosexuals are not protected from discrimination; and other countries that have adopted nondiscrimination laws. Extending rights to transgender people is generally more controversial than simply to gays and lesbians. Further up the hierarchy of acceptance, some jurisdictions in Latin America, Europe and the United States have adopted domestic partnership rights to provide recognition and benefits for same-sex relationships, while certain European countries and Canadian provinces have established fully equal rights to civil marriage.
Lesbian, gay and transsexual rights have become a major issue within the United Nations, surfacing first at the Cairo conference on population control in 1994, and the Beijing conference on women in 1995. The 2001 U.N. General Assembly Special Session on AIDS broke down over the withdrawal of an invitation to a gay rights group to speak at an official roundtable regarding the human rights aspects of the epidemic. The General Assembly, with many countries represented at the level of foreign minister or head of state, put aside substantive discussion for three hours to debate the invitation, which was then reinstated over the bitter opposition of many Islamic states in particular. Despite this victory, due to explicit homophobia, lesbian and gay human rights groups continue to be denied U.N. accreditation as official “nongovernmental organizations” routinely granted to other organizations.
In 2003 and again this year, Brazil introduced a resolution on human rights and sexual orientation at the annual meeting of the U.N. Human Rights Commission in Geneva — but both years it had to be tabled for lack of sufficient support. Also within the U.N., there has been controversy within the General Assembly over the decision of Secretary General Kofi Annan to extend employee benefits to same-sex spouses of U.N. employees whose home countries have sanctioned such marriages.
A number of significant cases involving gay rights have been decided by international human rights tribunals. An early landmark was the 1981 decision of the European Court of Human Rights in Dudgeon v. United Kingdom, overturning criminal prohibitions on homosexual relations in Northern Ireland under provisions of the European Convention on Human Rights. In a similar decision applicable globally, the U.N. Human Rights Committee held in the case of Toonen v. Australia in 1994 that criminal prohibitions against homosexual activity violated the International Covenant on Civil and Political Rights. In Joslin v. New Zealand, however, the Human Rights Committee held in 2002 that the Covenant does not require countries to legalize same-sex marriage.
There is a reverberation between domestic and international law on these issues. Notably, the U.S. Supreme Court, overturning the remaining anti-sodomy laws in the United States last year in Lawrence v. Texas, cited decisions on gay rights from the European Court of Human Rights.
The wide difference of viewpoint between those countries that uphold the rights of gays and lesbians as fundamental and universal, to others where homosexuality remains condemned as an abomination, assures continuing tension in international law and politics. The movement to establish the universality of gay rights raises difficult questions of a globalization of values and may exacerbate the already severe tension between the West and the Islamic world. Yet there can be no doubt these issues will not go away, as there are of course gay and lesbian people everywhere. Emboldened by advances in the West easily observed through new means of global communication, lesbians and gays in even the most traditional societies increasingly seek the right to express their sexuality free from oppression, and ultimately to form families and obtain societal recognition for those families.
As we reflect on how far we have come — and how far we have yet to go — 35 years after Stonewall, it is especially remarkable just how global the struggle to establish gay rights has become. Much as Ralph Waldo Emerson described the battle at Lexington and Concord in 1775 as “the shot heard ’round the world” in advancing self-government and self-determination, the resistance to oppression that began in the Village in 1969 has also been heard ’round the world.
Moss is the Democratic State Committeeman for Greenwich Village and Lower Manhattan, chairperson of the Reform Caucus of the Democratic State Committee, and has been actively involved in the effort to establish marriage equality in New York. Professionally, Moss serves as United Nations representative for the New York City Bar Association, which supported the Brazil resolution on sexual orientation and human rights at the U.N. Human Rights Commission meeting in Geneva this year.
