Last Thursday, three men were hanged in Iran for the crime of lavat, sexual intercourse between two men. The case is considered extreme even by Iranian standards, because while the death penalty is in place for homosexuality, it is usually enforced only when there is a charge of assault or rape alongside it; the accusations in these three cases were of consensual sex.
In Uganda, politicians have been seeking since 2009 to institute a strikingly nasty piece of legislation: the death penalty for “aggravated homosexuality” (being homosexual more than once) and, in a totalitarian touch, penalties for teachers, doctors and even parents who suspected that someone in their care was gay but didn’t report them. In Belize, there is a law on the statute books that criminalizes homosexuality; a gay rights group in the country, Unibam, has brought a motion challenging the law, and had this reply from the minister of works, Anthony “Boots” Martinez: “My position is that God never placed anything on me for me to look at a man and jump on a man. I’ll be clear on it ... How would you decriminalize that, I am sorry, but that is law. Not only is the law made by man, that is a law made from the Bible. Why you think God made a man and a woman, man has what woman wants, and woman has what man wants, it’s as simple as that. I’ll fight tooth and nail to keep that law.”
For lesbian and gay people who live in one of the 82 countries where homosexuality is criminalized, the world is not getting better: It is getting significantly, demonstrably worse. The irony — it’s actually not an irony, it’s a source of great shame, but it is also an unhappy coincidence — is that 40 of these countries are members of the Commonwealth, and this is a British export. Homosexuality was criminalized in the UK in the 1880s, and was therefore part of its legislative package in the age of empire. By the time it was decriminalized in England and Wales in the Sexual Offences Act of 1967 (Scotland followed in 1980 and Northern Ireland in 1982), we no longer had any control over Commonwealth jurisdictions. The repeal came after a report by John Wolfenden in 1957; if its findings had only been enacted more swiftly, today unnumbered people across the Commonwealth — at an estimate, more than a million — would be living entirely different lives. Jonathan Cooper, CEO of the Human Dignity Trust, says: “The human misery that criminalization causes can never be overestimated. The impact on lesbian and gay people growing up, you cannot overestimate what it does to people living under those laws, even if they’re not being prosecuted. Just the fact that the rest of society is denied to them, they have no access to it.”
Photo: Bloomberg
That’s the bad news. Incredibly, for a story like this, there is also good news. Apart from specific campaigning bodies such as Stonewall and more general human rights agencies such as Amnesty, there is a new crop of organizations trying to tackle this in a different way. This isn’t another story about new media taking on old battles, though an awe-inspiring Facebook campaign, We Are Everywhere, has gained ground since the hangings last week. Two groups in particular are taking the old-fashioned routes of top-level pressure and the rule of law. Kaleidoscope is described by its director, Lance Price, thus: “First, we’re being driven by the experience of the people in the countries we’re talking about. If you look at any country in the world where there has been progress, it started with a small group of people who had the courage to stand up. It’s their struggle, these are their countries. Second, the people involved have been active in politics at a very high level [Price is a former adviser to Tony Blair], or active in the civil service at a very high level. I’m not bragging. But we’re working all the time on behalf of people who struggle to have a voice, and we can bring them to the attention of powerful people who do make decisions, in their own countries and here.”
It’s not lobbying, exactly; it’s not diplomacy, but it is characterized by “quiet conversations with people who can make a difference. We’re going to have to engage with people, quietly, rather than shouting at them.”
The other group, the Human Dignity Trust, is not a campaigning organization either. It is not there to raise awareness and is not even there to put pressure on governments. It is setting out to change the law, in the Commonwealth and beyond, on the basis that it is a breach of international human rights to criminalize someone’s sexual identity.
With a few exceptions — Saudi Arabia being one — all the countries that criminalize homosexuality are signed up to either the International Covenant on Civil and Political Rights or they are bound by test case rulings in their respective courts. “This is a matter of law,” Cooper says. “Once you’re not following the law, you’re undermining the rule of law.”
This is reflected in the list of the trust’s patrons — the former attorney general of India; the former secretary-general of the Commonwealth; Harry Woolf, former lord chief justice of England and Wales; and a former judge at the Intra-American court of human rights. “They are not pursuing this as part of a lesbian and gay agenda. It’s an international rights law agenda,” Cooper says.
The story of the trust is this: When Uganda’s homophobic upsurge began two years ago, Tim Otty, a Queen’s Counsel with a “strong sense of fairness” (according to his entry in Chambers UK), was asked by the Commonwealth Association to give his advice on the law, and found it, perhaps unsurprisingly, to be in breach of the country’s human rights treaty obligations. Cooper, also a barrister and a friend of Otty, explains how the situation evolved: “Tim is pretty establishment — he’s at Blackstone chambers, he’s not somebody you would associate with lesbian and gay issues. Unlike me, because I’ve been around these issues for 20, 30 years; I’ve done transgender cases, I’ve done sexuality in the armed forces cases, I’ve done loads of this type of stuff. So I was not at all surprised when, as we found out in our research, 80-plus jurisdictions continue to criminalize homosexuality around the world. That’s almost half the countries in the world.” He was amazed that countries still criminalized in flagrant violation of international human rights law, even having signed the treaty.
The test case for European law was Jeff Dudgeon vs the United Kingdom in 1981, when the activist brought a case against the British government for the fact that criminalization was still in force in Northern Ireland.
“In a way that was the revolution,” Cooper says. “Human rights now protected the lesbian and gay identity. But the Brits didn’t over-defend Dudgeon.”
If you are looking for excessive defense, that happened in the Republic of Ireland in the late 1980s. “They threw everything at this case, to say, ‘You are not going to change our law, human rights law cannot change Ireland’s Christian-based law.’ The Strasbourg court said, ‘Actually, we can.’”
After one more case, in Cyprus, this became a settled matter for the Council of Europe. Then, following a case brought by Nicholas Toonan in Australia in 1991, the same decision was reached by the UN.
“By the mid 1990s, it had been settled: International human rights law doesn’t protect lesbian and gay rights; it protects identity. And as a consequence of protecting identity it protects you as a gay man or a lesbian woman from having your identity criminalized. That’s how it works,” Cooper explains.
So all the trust has to do now is change the world through test case litigation. It does so by finding an individual who is mounting a challenge against, say, the government of Belize, and then, to put it a layman’s way, piling in. “I e-mail our legal panel, asking: Anyone have any experience of litigating in Belize? Someone comes back and says, ‘Yeah, we’ll represent you in this legal challenge.’ They bring in as their counsel Lord Goldsmith, and the former attorney general of Belize, Godfrey Smith. We turn up as the international community, with a legitimate interest in the outcome of this case, but we do change the nature of the struggle because we have approached it on the basis that it’s a major legal challenge. That is our intention.”
They’re not going to know what’s hit them, I observe.
“You almost feel sorry for the judge!” Cooper replies, delighted.
Naturally, an appeal will be mounted, whoever loses, and the case will then go to a higher court.
“What that means is that when we turn up in the difficult places of Africa and Asia, it’s watertight. You can imagine them saying: ‘Well, that’s South Africa, that’s the US supreme court,’ and trying to distinguish them. But it would be very difficult to distinguish two privy council decisions, one from the South Pacific, one from the Caribbean. If you are that independent judge in Kenya, faced with those authorities, how do you say: ‘We’re going to retain criminalization’? You can’t.”
Price is quite cautious about the work he’s taken on: he thinks the process will be slow, and its impact subtle.
“If we can just begin to level the playing field a bit so that the other side is put, that will be progress. Because, at the moment, those who want to preach hate have pretty well got a free run.”
Cooper, also measured but with the fire of optimism in his eyes, thinks they could have all the decisions they need in five years. “We will have to pay for cases in jurisdictions; I don’t see why local lawyers should do it pro bono. We will fund-raise, and there is something rather charming that you can say to somebody: ‘If you give us £50,000 [US$80,000], I can more or less guarantee that you will have decriminalized homosexuality in Tonga.’ And actually, you know, that’s great.”
Persecuted for their sexuality
Bisi Alimi, from Nigeria
“In 2002, I was at university in Nigeria and standing for election. A magazine wrote about me and exposed me as being gay. This led the university to set up a disciplinary committee. I was very nearly dismissed. While this was going on, the then-president, Olusegun Obasanjo, declared that there were no homosexuals in Nigeria, and that such a thing would not be allowed in the country.
“I talked with a friend of mine, who is a famous Nigerian talk-show host, about challenging this opinion. Nobody had come out publicly before. So, in October 2004, I appeared on her breakfast show. I talked about my sexuality, the burden of the HIV epidemic in the gay community. I was subjected to brutality from the police and the community. I was disowned by my family and lost many friends, including in the gay community. They were afraid to know me. The TV show was taken off the air by the government. It led to the introduction of the Same Sex Prohibition bill of 2006. All I had done was say who I was.”
Nassr, from Iraq
“I was working for the Americans as a translator. When I got back to Iraq, I found that my house had been confiscated by the Mahdi militia. They are Shia, I am Christian. When I knocked on the door, I said: ‘This is my house.’ They said: ‘This is not your house. Either you go or we kill you.’ They beat me. They hit me on my head with their guns. I ran away, so they went after my sons instead. I heard they had asked my neighbors about me, and the neighbors had told them I am gay. I was now in real danger.
“The militia captured my eldest son. They killed him to get to me. After that they found my other son and tortured him for information on me. They eventually killed my other son too. I fled to Syria, and now I’m alone without any family.”
Skye Chirape, from Zimbabwe
“As a lesbian growing up in Zimbabwe, I was non-existent and my visibility would have costed me jail time, ‘corrective’ rape, forced marriage, banishment, beatings or even death. There was not one single portrayal anywhere of gay sexuality or lesbianism combined with Africanness. Due to my middle-class and strict Christian upbringing, life was tough and every day was a challenge.
“Homosexuality was never discussed in the community, in the media, or within the family, unless negatively. Anyone who is perceived to not follow the norm is viewed as a disgrace or shame. So I decided to leave Zimbabwe for the UK.
“However, while sexual relations between men are illegal in Zimbabwe, lesbians are not specifically legislated against. This has allowed the Home Office to conclude that many lesbians of Zimbabwean origin have not established a well-founded fear of persecution and do not qualify for asylum. After a seven-year odyssey of bureaucratic red tape, including false imprisonment as an illegal immigrant, I was finally granted asylum in the UK. I am now studying for an master of science in forensic psychology and work in the British justice system.”
Note: Some names have been changed.
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