LGBT human rights in the Age of Human Rights

A note about this piece ¹

Introduction

LGBT activists around the globe have often framed demands for equal treatment, access to goods and services, and broader social transformation as matters of “LGBT human rights.” Increasingly, such framings have gained legitimacy and meaningful traction among many—although certainly not all—governmental and intergovernmental bodies. On December 10, 2010, UN Secretary General Ban Ki-moon made history by voicing his support for LGBT rights at an event for Human Rights Day. ² Just months later, a statement recognizing LGBT rights as human rights gained the support of an unprecedented eighty-five states at the UN, ³ and shortly thereafter, the UN Human Rights Council passed its first resolution expressing concern about violations on the basis of sexual orientation or gender identity. ⁴ It is becoming less and less controversial to assert, as U.S. Secretary of State Hillary Clinton declared a year after Secretary General Ban’s speech, that “gay rights are human rights, and human rights are gay rights.” ⁵

Yet human rights are not ideologically neutral, and whether a human rights framework is the most productive means to pursue the ends of social justice is debatable. Progressive critics warn that human rights framings are imperfect and partial—that they are culturally and politically specific; fail to address a range of human needs and desires that are not easily cognizable as rights; legitimate the demands of some populations while ignoring or delegitimizing others; promote rigid understandings of social categories that are in fact dynamic and heterogeneous; and favor technical, legalistic, and often punitive approaches to complex problems that are socially and structurally entrenched. Such warnings draw upon a long tradition of thought that is skeptical of the human rights framework’s potential to meaningfully expand the horizon of possibility for the most marginalized.

Critiques of human rights often focus on the ways these rights have been articulated by governments and intergovernmental bodies and advanced by generalist human rights NGOs that seek to make them inviolable. When activists talk about LGBT human rights, however, they are not necessarily speaking in the same register. Historically, transnational LGBT activists seeking entry into the human rights arena have not been firmly wed to the formalistic understandings of rights that critics associate with mainstream human rights advocacy. ⁶ Their analyses have instead been informed by feminist and queer organizing, the various social justice movements with which they have been involved, and the felt needs of the individuals with whom they work. They have translated the vital concerns of LGBT people into a language that policymakers can understand, and due in part to their historical exclusion from human rights forums and NGOs, their advocacy has deliberately expanded the boundaries of the human rights project in innovative ways. Whether transnational LGBT activists will enjoy the same latitude as LGBT rights are formally recognized and codified as human rights by governments and intergovernmental bodies is, however, an open question.

In this essay, I explore the complex and evolving role of human rights framing in transnational LGBT advocacy. I begin by considering critiques of human rights and the ways in which capacious understandings of rights claims do or do not remain tenable in the face of institutional recognition. Next, I look at early invocations of human rights within LGBT movements and the flexible understanding of human rights advanced by activists at transnational LGBT NGOs. Finally, I focus on three ways in which an activist preoccupation with LGBT human rights might circumscribe the claims and approaches used in transnational LGBT advocacy, and urge advocates to maintain a vision of sexual justice beyond the human rights framework that would preserve the expansiveness, flexibility, and solidarity that queer movements have so often embodied.

I. Critiques of Human Rights

The human rights framework has been attractive to LGBT activists in part because it has become a hegemonic discourse for asserting and understanding claims about justice. Yet as a number of critics writing from both generalist and queer perspectives have warned, this framework is not ideologically neutral. ⁷ In its most mainstream form, human rights discourse is loaded with historical and political baggage that can pose very real risks for movements seeking transformative or liberatory ends. Before considering how LGBT movements have invoked human rights and how institutionalization might constrain more innovative aspects of activism, it is helpful to first identify and discuss some of the mainstream critiques of human rights as a legal and political project.

Perhaps the broadest critique of human rights targets their inherent legalism and underlying focus on particular kinds of entitlements. This critique takes a number of forms. Perhaps most obviously, human rights are conventionally understood to function as claims against the state. The framework’s focus on the state apparatus threatens to normalize, if not render invisible, violations that occur at the hands of non-state actors. For marginalized communities at risk from non-state actors of various kinds—whether criminal syndicates, multinational corporations, or their own family members—human rights may deliver very little in the way of accountability and redress. At most, human rights may provide a language to demand that the state monitor and put a stop to persistent patterns of violations by non-state actors. But where the state apparatus is weak, underresourced, or understaffed, convincing it to redouble its commitment to human rights may do little in practice. And when movements are limited in time, energy, and resources, an intensive focus on the state can divert much-needed attention and energy from other forms of non-state persuasion, bargaining, and mobilization that could generate meaningful change.

A similar concern is that human rights are typically cast as individual entitlements, which can silo claims and sap social movements of their collective, solidaristic commitments. As David Kennedy has suggested, “[t]he focus on discrete and insular right holding identities blunts awareness of diversity, of the continuity of human experience, of overlapping identities.” ⁸ By specifying claims that individuals can—and cannot—assert against the state via legal channels, human rights advocacy recognizes some rights holders, claims, and avenues for redress—but not others—as legitimate. In doing so, it threatens to undermine the critical role that participatory social movements play in fostering mass mobilization over more generalized grievances, with potentially dire consequences for intersectionality and inter- or intra-movement solidarity.

Concerns about the statist, individualistic nature of human rights are especially acute insofar as human rights, sounding in the register of law, define the field of legitimate claims and implicitly delegitimize alternative approaches to social and political change. As John and Jean Comaroff have noted, law and legality have become a hegemonic discourse for confronting intractable problems; in many contexts, “lawfare” is the instinctive response to problems that might be better addressed through popular protest, community mobilization, democratic deliberation, or concerted state efforts. ⁹ As human rights have attained a dominant status in global campaigns for justice, “other lost vocabularies that are equally global—vocabularies of duty, of responsibility, of collective commitment”—have often faded from view as legitimate and at times more strategic alternatives. ¹⁰ The relationship between human rights and social justice is of particular concern for many critics, as the supposedly neutral arbiter of the law becomes the preferred avenue for change at the expense of more structurally or politically transformative approaches. ¹¹

A second critique of human rights responds to the pretension of universality, which encompasses both the historically specific origins of human rights and the presumption that a model of rights informed by those origins is more legitimate than others. A frequent target of this critique is the outsize influence of Euro-American legal traditions and actors in the human rights field and the charge that they systematically privilege civil and political rights over economic, social, and cultural rights or rights to self-determination, development, or a clean environment. In response, a number of scholars have sought to more firmly ground human rights in diverse traditions of justice, equality, and dignity transnationally. ¹² In practice, however, human rights often reflect culturally specific biases toward particular epistemologies and entitlements—for example, a preoccupation with negative rights and a relative disregard for positive rights to food, healthcare, housing, education, or work. Although it remains a central conceit of human rights that these rights are shared by all persons by virtue of their humanity, robust debates about the philosophical and political underpinnings of human rights continue in the academy and in supranational forums.

A third critique of human rights interrogates the formal emphasis on indivisibility in human rights discourse, and highlights that human rights are a vast and disparate array of claims, many of which are in tension with one another. A government’s claim that it respects human rights in fact tells us very little about its specific political commitments. ¹³ Where rights come into tension with each other or are in any way indeterminate, governments have asserted considerable authority to apply their own interpretations. Consider, for example, how governments have privileged particular interpretations of children’s rights and freedom of religion above freedoms of speech and assembly for LGBT persons, or how governments have justified divergent and even contradictory approaches to sex work by invoking the same rights to equality, health, and dignity.

Yet these concerns take on greater or lesser urgency depending on what activists do with the claims they assert, within and without the human rights framework. Activists in a number of identity- or interest-based movements—women’s rights, children’s rights, disability rights, indigenous rights, environmental rights, and animal rights among them—use the terminology of human rights in flexible and creative ways, often in tandem with their work outside the human rights arena. ¹⁴ Indeed, as anthropologists have observed in a variety of contexts, human rights are not only or even primarily understood as the technical, legally actionable rights enshrined in international agreements. ¹⁵ They are more broadly claims about justice, formed and advanced by communities who adopt the rhetoric of human rights as a discourse of access, equality, and accountability vis-à-vis the state.

The existence of these folk conceptions is not lost on critics of human rights. Like anthropologists, they recognize that human rights advocacy has overflowed the strictures of treaties and conventions to infuse popular movements around the globe. Stephen Hopgood, recognizing this feature of human rights advocacy, thus makes a useful distinction between what he calls “Human Rights” and “human rights”:

There is a deep divergence between the concept of human rights shared by elites, largely until now located in the west (what we might call Human Rights), and what those rights mean for the vast majority of the world’s population (what we might call human rights). Human Rights are a New York-Geneva-London-centered ideology focused on international law, criminal justice, and institutions of global governance. Human Rights are a product of the 1%. The rest of the world, the 99%, sees human rights activism as one among many mechanisms to bring about meaningful social change. By their nature, lower-case human rights are malleable, adaptable, pragmatic and diverse—they are bottom-up democratic norms, rather than top-down authoritative rules. ¹⁶

Hopgood argues that the efficacy of generalist NGOs like Amnesty International or Human Rights Watch has been unhelpfully limited by an institutional Human Rights model, which he believes undergirds their philosophy and guides their advocacy. He contends that “if the concept of global human rights is to endure, a new and more political, transnational, agile and adaptable kind of movement must emerge, replacing today’s top-down, western-led model of activism.” ¹⁷

Focusing only on NGOs that advance a “Human Rights” model ignores more subversive transformations carried out by activists and groups that, though seemingly part of the same movement, advance a much more creative and flexible “human rights” model. As a number of authors have suggested, activists around the globe have “vernacularized” human rights by making them cognizable and useful in local struggles. ¹⁸ On the margins, human rights—in the lower-case, popular-democratic sense of the term—are animated in a particularly powerful way by identity- and interest-based groups. By bringing the language of human rights to bear on their unique needs and desires, these groups collectively engage with the promises of those rights in novel ways, and thereby make visible claims that might appear radical to those in the Human Rights tradition.

Moreover, the boundary between Human Rights and human rights is highly porous. Generalist Human Rights organizations have developed innovative programs on indigenous rights, health and human rights, and business and human rights, just as grassroots social movements have adopted highly formalist tactics to bring groundbreaking claims before judicial tribunals and intergovernmental bodies. For LGBT activists, the question that merits closer attention at this particular moment is what might happen when the institutional arbiters of Human Rights formally embrace LGBT human rights and take it upon themselves to promote those rights worldwide. When generalist NGOs, governments, and intergovernmental bodies take up the banner of LGBT human rights, LGBT activists become just some of the many voices in a much larger conversation defining what these rights entail and what it means to promote and defend them. When this occurs, movements for LGBT human rights run a very real risk of being coopted and transformed into movements for LGBT Human Rights.

What might this mean for transnational LGBT activism? Relinquishing the discourse of human rights is neither viable nor desirable; LGBT issues are increasingly understood through that framework and few who critique the turn toward human rights would take the position that LGBT people are not entitled to those rights on equal terms with others. As the ascendency of LGBT human rights continues, it is important to consider what LGBT activists have conceptualized and promoted as LGBT human rights thus far. With that history in mind, it is possible to contemplate how the embrace of LGBT human rights by governmental and intergovernmental bodies might reproduce the limitations of mainstream Human Rights advocacy, and to critically assess how LGBT activists might intervene to instead move newfound allies toward more radically transformative possibilities.

1. The author would like to thank Michael Bosia, Ryan Heman, Rachel Korberg, Anthony Langlois, Brenna Munro, Gema Pilar Perez Sanchez, and two anonymous reviewers for their thoughtful feedback on the arguments in this essay. Any errors that remain are mine.[↑]
2. UN Secretary-General, “Confront Prejudice, Speak Out against Violence, Secretary-General Says at Event on Ending Sanctions Based on Sexual Orientation, Gender Identity,” Dec. 10, 2010, http://www.un.org/press/en/2010/sgsm13311.doc.htm.[↑]
3. Human Rights Watch, “UN Human Rights Council: A Stunning Development Against Violence,” Mar. 22, 2011, http://www.hrw.org/news/2011/03/22/un-human-rights-council-stunning-development-against-violence. [↑]
4. UN Human Rights Council, “Human Rights, Sexual Orientation and Gender Identity,” UN Doc. A/HRC/17/L.9/Rev.1, June 15, 2011.[↑]
5. U.S. Department of State, “Remarks in Recognition of International Human Rights Day,” Dec. 6, 2011, https://photos.state.gov/libraries/belize/231771/PDFs/Remarks%20in%20Recognition%20of%20International%20Human%20Rights%20Day.pdf. [↑]
6. Ryan R. Thoreson, Transnational LGBT Activism: Working for Sexual Rights Worldwide (Minneapolis: University of Minnesota Press, 2014), 91-121.[↑]
7. See, e.g., Neville Hoad, “Between the White Man’s Burden and the White Man’s Disease: Tracking Lesbian and Gay Human Rights in Southern Africa,” GLQ 5 (1999): 559-84; Rahul Rao, Third World Protest: Between Home and the World (Oxford: Oxford University Press, 2010), 173-95; Cynthia Weber, Queer International Relations (Oxford: Oxford University Press, 2016), 104-42; Cai Wilkinson & Anthony J. Langlois, “Special Issue: Not Such an International Human Rights Norm? Local Resistance to Lesbian, Gay, Bisexual, and Transgender Rights—Preliminary Comments,” Journal of Human Rights 13 (2014): 249-55, and other essays collected in that issue.[↑]
8. David Kennedy, “The International Human Rights Movement: Part of the Problem?,” Harvard Human Rights Journal 15 (2002): 112. [↑]
9. John L. Comaroff & Jean Comaroff, “Law and Disorder in the Postcolony: An Introduction,” in Law and Disorder in the Postcolony, ed. Jean Comaroff & John L. Comaroff (Chicago: University of Chicago Press, 2006), 22.[↑]
10. Kennedy, “Part of the Problem?,” 101-25.[↑]
11. At least some prominent figureheads in the human rights movement have urged a distinction between human rights and social justice. As one writes: “Each is important in itself, but they are different. It makes no more sense to ask a human rights organization to transform itself into a social justice organization than to ask it to become an environmental organization.” See Aryeh Neier, “Misunderstanding Our Mission,” Open Democracy, July 23, 2013, http://www.opendemocracy.net/openglobalrights/aryeh-neier/misunderstanding-our-mission.[↑]
12. See, e.g., Abdullahi A. An-Na’im, “Introduction,” in Cultural Transformation and Human Rights in Africa, ed. Abdullahi A. An-Na’im (London: Zed Books, 2002), 3.[↑]
13. See Eric Posner, “The Case Against Human Rights,” The Guardian, Dec. 4, 2014, http://www.theguardian.com/news/2014/dec/04/-sp-case-against-human-rights.[↑]
14. Thoreson, Transnational LGBT Activism, 211-27.[↑]
15. See, e.g., Mark Goodale & Sally Engle Merry, eds., The Practice of Human Rights: Tracking Law Between the Global and the Local (Cambridge: Cambridge University Press, 2007).[↑]
16. Stephen Hopgood, “Human Rights: Past Their Sell-By Date,” Open Democracy, June 18, 2013, https://www.opendemocracy.net/openglobalrights/stephen-hopgood/human-rights-past-their-sell-by-date.[↑]
17. Hopgood, “Past Their Sell-By Date.”[↑]
18. Sally Engle Merry, “Transnational Human Rights and Local Activism: Mapping the Middle,” American Anthropologist 108.1 (2006): 38-51; Ryan Richard Thoreson, “Realizing Rights in Manila: Brokers and the Mediation of Sexual Politics in the Philippines,” GLQ 18.4 (2012): 529-63; Lynette J. Chua, “The Vernacular Mobilization of Human Rights in Myanmar’s Sexual Orientation and Gender Identity Movement,” Law and Society Review 49.2 (2015): 299-332. [↑]