I was thrilled when I heard about the “Bloggers Unite for Human Rights” event, because as you may have figured out, international human rights is kind of “my thing.” I plan to have a long career as a human rights activist, and to keep writing and learning about human rights. This semester, I took a seminar on international human rights law, and wrote a seventy-three page paper proposing an express non-discrimination principle based on sexual orientation in the application international human rights law. Unfortunately, I can’t share the paper with you just yet, because I plan to condense and submit it to either a law journal or an essay prize, and then to expand it into a book, but I did want to talk a little bit about the intersection between gay rights and human rights, and why you should care.
Often, when social conservatives hear the words “gay rights,” I think they conjure up an idea of far out there, leftist, liberal, radical rights for gay people that necessarily conflict with and infringe on their own rights, whether those be social, cultural, religious, economic, privacy, or anything else. The thing about human rights, though, is that they are universal. Putting gay rights in a human rights framework really challenges us to think about our humanity, and our dignity. It requires some tough questions. I think in any context, thinking about human rights is a long process, and to really “get it,” you have to engage in some fundamental paradigm shifts. When you picture “gay rights,” whether you’re gay or straight, conservative or liberal, you might imagine a catalogue of rights that are unique in some way, that only apply to people who fit into a particular “gay” box.
There are some problems with this view, though, no matter where you’re coming from. First, this model necessarily excludes some people. It means you have to be “gay” (or lesbian, or bisexual) to have or fight for those rights. When we base rights on status and identity, we require people to engage in a particular kind of identity formation. This model is embraced by many in the West, but it causes problems when well-meaning activists import it to the developing world. (More on that in a future post.) It also doesn’t necessarily include everyone in the West. There are plenty of Americans who are uncomfortable with certain labels, or those who don’t consider their sexual conduct a valid indicator of their sexual identity. The “gay rights” model is also problematic politically, because it makes it easy to oppose. You might think that gay rights are “special” rights, or that they necessarily mean that other people can’t have rights. You might think that gay marriage, for example, harms the heterosexual marriage institution, or that affirmative action in employment means you’ll be out of a job. It’s also easy to think of “gay rights” as being radical, liberal, Democratic, or opposed to Christianity. I don’t agree with these arguments, but they exist, and they are something to which you constantly have to respond when using the “gay rights” model.
This is why I suggest human rights as an alternative. One of the most important characteristics of human rights as a group is that they are universal. Some may be more justiciable than others, certainly. Some rights are labeled “aspirational,” meaning that people do all have a right to a certain thing, but due to limited resources, unsympathetic governments, or whatever else, they are denied that right at the moment. Just because a right has being violated, even if it has always been violated, does not mean we do not have that right.
When we think of these individual issues or rights claims (gay marriage, employment non-discrimination, right to privacy, etc), we must execute a mental shift. If we think of these rights in universal terms, then we begin to realize that it is hypocritical to oppose them for others, but not for ourselves. Discrimination is illogical. John Rawls coined the term “veil of ignorance.” This means that in thinking about rights, we consider ourselves from an initial position of ignorance about ourselves. We imagine that we cannot see ourselves, and we know nothing about ourselves – we don’t know if we’re black, Muslim, gay, disabled, French, middle-aged, upper class, or anything else. In this position, we necessarily would confer as many rights as possible without infringing upon the rights of others, because we don’t know where we’ll end up. It would be stupid to deny rights to a certain class, if we might end up in that class.
So take a moment to consider yourself in this position, completely ignorant as to your sexual orientation. I think you’d be a little hesitant to differentiate between orientations as you dole out rights to individuals. You wouldn’t want to limit rights for gay people, or straight people, for men who have sex with men, or women who have sex with women, for those who have sex with both sexes, or those who have sex only with the opposite sex. You wouldn’t want to limit how people are allowed to express themselves, or associate with others. You’d want to make sure everyone has as many rights as possible to preserve their own dignity – their own humanity – without harming others.
So the next time you hear about “gay rights” in the media or in the courtroom, in the school or in your workplace, try to frame them mentally in a different way. Think about the right to marriage, for example. If you’re straight, you wouldn’t be very happy if someone told you that you weren’t allowed to marry your opposite sex partner. Or think about the right to privacy. What if there were a law on the books that said (due to population control problems, for example) that men and women were not allowed to engage in procreative sex in their own homes? Think about freedom of expression. What if holding hands with your opposite sex partner, or wearing a t-shirt with a slogan such as “I like boys” if you’re female, exposed you to ridicule and violence? You wouldn’t like it very much.
Those of us who are comfortably gay and have always advocated gay rights can also benefit from this perspective. It isn’t just a new way to make the argument to those who don’t agree with us, but it’s also a way to be more inclusive. We can stop thinking so hard about who belongs in the acronym, who can show up at the festival, who gets to enter the club, and whose rights we want to fight for. Fighting for human rights means fighting for everyone. It means identifying gaps where they exist, and filling them in. Perhaps in a given society, people are targeted for same-sex conduct. Maybe in another society, identity as gay or lesbian or some other moniker is what matters. Perhaps it’s non-normative gender expression that results in violent responses or inadequate legal protection. This strategy helps us open our eyes, and see what needs to be fixed, no matter how we personally identify. It also gives an opportunity for coalition building. Gay rights are human rights. So are women’s rights. So are rights for people regardless of race or ethnicity. If we recognize that we are all fighting for the same thing, we can help each other recognize violations and work together to eradicate them.
I hope if you’ve made it to the end of this post, you’ll have some time to think about and digest what I’ve said. I’m always happy to engage in discussion, so feel free to comment. And, if you’re interested in learning more, I highly recommend the following readings (please excuse the slightly incorrect citation format as I can’t do large and small caps here):
- Carl F. Stychin, Same-Sex Sexualities and the Global Human Rights Discourse, 49 McGill L.J. 951 (2003).
- Eric Heinze, Sexual Orientation: A Human Right (1995).
- Hassan El Menyawi, Activism from the Closet: Gay Rights Strategising in Egypt, 7 Melb. J. Int’l L. 28 (2006).
- Laurence R. Helfer & Alice M. Miller, Sexual Orientation and Human Rights: Towards a United States and Transnational Jurisprudence, 9 Harv. Hum. Rts. J. 61 (1996).
- Robert Wintemute, From ‘Sex Rights’ to ‘Love Rights’: Partnership Rights as Human Rights, in Sex Rights: The Oxford Amnesty Lectures 2002 186 (Nicholas Bamforth, ed., 2005).
- Sonia Katayal, Exporting Identity, 14 Yale J.L. & Feminism 97 (2002).
- Vincent J. Samar, Gay-Rights as a Particular Instantiation of Human Rights, 64 Alb. L. Rev. 983 (2001).