Violence Still Prevalent Despite Progress on LGBTI Rights in Latin America

@RHRealityCheck

As 2012 came to a close, Sao Paolo joined the jurisdictions that allow same-sex marriage. The joy this news elicited is absolutely warranted. However, it may cover up the fact that equal marriage rights do not mean the end to hostility against those who aren’t straight.

Arguably nowhere is this truer than in Latin America.

First the good news. Latin America has been making unprecedented advances on same-sex marriage and related issues these past couple of years. Argentina legalized same-sex marriage in 2010, as the first country in Latin America, right after Mexico City (the largest metropolis in the region) did the same in 2009. In early December 2012, Saba Island in the Caribbean followed suit, and Uruguay’s lower house passed a same-sex marriage bill. And then, as mentioned, later in December, Sao Paolo did the same. Meanwhile, the transgender rights regulations that were pushed through by Argentina's government earlier in 2012 are considered some of the world's most progressive.

Bearing all this in mind, one might be excused for thinking that Latin America is an accepting and safe place to live for lesbian, gay, bisexual, transgender, and intersex people.

That would be the wrong conclusion.

For decades, those who don’t look or act straight have been targeted for violence across the region. Brazil has been dubbed “the world champion in the murder of homosexuals” and in 2012 the brutal murder of an openly gay man in Chile highlighted the surge in violence against gay men and transgender individuals in particular. The main LGBTI organization in Peru, MOHL, notes that every 5 days a lesbian, gay, or transgender person is killed in that country. In 2011, the leader of an LGBTI organization in Mexico was beaten to death. Meanwhile, in December 2012 the Peruvian police put forward new regulations that prohibited police officers from having sex with a same-sex partner in a “scandalous” manner.

While this ban was almost immediately repealed after public uproar allegedly caused a split in the cabinet on the matter, it offers a clue to how support for same-sex marriage can co-exist with extreme violence against LGBTI populations. And that clue is the word “scandalous.” In essence, what the repealed regulation sought to control was not so much sex with a same-sex partner or same-sex relationships, but rather how those relationships would “look” in the public eye.

It is this same logic that is at play when individuals targeted for violence and murder in Latin America (and elsewhere too) are those who most visibly challenge gender norms: transgender men and women, “effeminate” men, “butch” women, or androgynous individuals who do not easily fit into a gendered box. These individuals are primarily being punished for not conforming to prevalent gender norms in their appearance and public behavior, rather than their private lives. Within this logic, same-sex marriage can be seen as conformity rather than revolt: it is an indication that same-sex couples are “just like” different-sex couples and therefore not threatening the status quo.

Of course, anyone who has ever dated someone of their own gender in Latin America will know that hostility extends far beyond those who don’t conform to prevalent gender-norms. Holding hands in public for two men or two women is a transgression some believe merit violence regardless of what each of the two looks like. This, apart from the obvious fact that nothing can or should excuse violence against any of us for any reason, including gender expression and sexual orientation.

This situation should serve as a reminder that legalizing same-sex marriage can only get us part of the way to full respect for LGBTI diversity and rights.

And perhaps more to the point, the coexistence of same-sex marriage and brutality against LGBTI communities in Latin America should make it clear that we must attack the larger fallacy at stake: the notion that only those who look, speak, talk, think, and live like the majority deserve equal rights and protection.

Potential SCOTUS Review of DOMA Presents Pivotal Moment for Gay Rights in America

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On Friday, November 30th (or today as you read this), the US Supreme Court judges are expected to announce which, if any, cases related to gay rights they will review. At stake are not only the right to marry and federal recognition of marriage-related financial benefits for same-sex couples who are already married. The cases before the Court touch upon our understanding of “the family” as an essential building block of society, and whether we can reasonably expect individuals to put part of who they are on hold in order to be considered worthy citizens.

The Supreme Court has been asked to review the constitutionality of the Defense of Marriage Act (known as DOMA), a piece of legislation which was signed into law by Bill Clinton in 1996, and which forbids the recognition of same-sex marriages for the purposes of federal benefits such as tax breaks, social security survivor benefits, and estate tax.

DOMA also prohibits married same-sex couples from benefitting from the same immigration rights as married opposite-sex couples, leading to the summary denial of green cards to foreign spouses of U.S. citizens and permanent residents merely because they are not straight. But in June this year, the US Board of Immigration Appeals sent four such cases back to immigration authorities to determine whether the marriages are valid under state law and whether those marriages would qualify for immigration purposes in the absence of DOMA.

Those decisions follow Obama’s early 2011 announcement that his administration would no longer defend the constitutionality of DOMA. In fact, the Board of Immigrations Appeals’ decision appear at least in part to be made in preparation for a, hopefully not too distant, post-DOMA world. But until this law is declared unconstitutional by the Supreme Court, or repealed by Congress, DOMA will remain force.

Opponents of the federal recognition of same-sex marriage benefits at times phrase their view as a defense of “the family” as the basic building block of society, implicitly or explicitly noting that only opposite-sex couples with or without children also are worthy of state protection as inherently “good.”

And several international and regional human rights documents do, indeed, establish the “family” as a fundamental group unit of society, and, in particular, as essential in the upbringing of children and the protection of the rights of the child. 

However, the definition of what a family might look like to qualify for state protection is deliberately broad and inclusive. In 2006, the United Nations Committee on the Rights of the Child clarified that when it talks about “family,” it means any number of arrangements, including same-sex families. In February this year, the Inter-American Court on Human Rights expressed a similar notion: “The Court confirms that the American Convention does not define a limited concept of family, nor does it only protect a “traditional” model of the family.”

More to the point, perhaps, study after study has dis-proven that an opposite-sex nuclear family is the only appropriate unit for bringing up children, and more than a third of children in the United States now live in single parent households and same-sex families.

Of course, this is not about marriage in the abstract, but rather about the benefits we assign to married couples, concretely, through the law. It is precisely because marital relationship are prioritized in law that same-sex couples would benefit tremendously from being allowed to marry in the first place, and to obtain federal tax, social security, and inheritance benefits when they do. If no marital relationships were given special status under the law, the impact of DOMA might be less stark on both adults and children.

It is unlikely that the Supreme Court judges will challenge this general privilege in law. But we can hope they decide to look at the suffering its unequal implementation causes.

The Problematic Framing of Abortion as an Issue of Privacy

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Over the past months, candidates for the Republican nomination for president have fallen over each other to declare their opposition to abortion rights. Research indicates that they needn't bother: states are quite capable of restricting women's access to abortion without help from the federal government. In fact, 2011 was a record year for the passage of state provisions to limit abortion access since 2003.

The success of state legislatures in restricting women’s right to choose is surprising given the fact that, when asked, slightly more Americans consider themselves “pro-choice” than those who say they are “pro-life.” But one key reason might be that the fight over abortion in the United States historically has been framed as an issue of privacy. And the right to privacy offers poor protection for what is also an issue of life, health, and—above all—discrimination.

In this sense, the opinions issued by the US Supreme Court in abortion-related cases can in some ways be seen as indicative of what is happening across the country. In the earlier cases the Court established a balance between women’s autonomy and the government’s legitimate interest in the protection of growing fetal life. This balance was successively undermined over time, culminating with the Court, in 2007, declaring it constitutional to criminalize a specific abortion procedure even for women for whom this procedure is the least likely to jeopardize their health.

To reach this conclusion, the Court explicitly placed moral concerns over a narrowly constructed right to privacy. Justice Ginsberg alone dissented, noting that the mandate of the Court was to protect the rights of all, not the morals of some. But, on the face of it, such weighting is not an entirely unreasonable conclusion. After all, universal morality would appear to be a broader and more applicable common good than guaranteeing the right of a handful of women to a specific medical procedure because of concern for their private lives.

Or not.

Because what is at stake is not just, as Justice Ginsberg also noted, some generalized notion of privacy but rather women’s ability to realize their full potential. Or, put differently, when a government unduly limits access to a medical procedure only women need, it not only infringes their privacy, it engages in blatant discrimination.

Discrimination, as it happens, is also a better rallying cry for activism. It is noteworthy that while states have imposed many abortion restrictions over these past years, the push for marriage equality (also a pet peeve of Republican candidates) is gaining momentum. True, a majority of states still have legal or constitutional provisions on the books defining marriage as between one man and one woman. But more and more states are passing laws to allow same-sex partners equitable partnership rights in circumvention of those provisions. Perhaps more to the point, the push for marriage as a matter of equality rather than a private concern for those living in same-sex couples has led to broad support for general reform. An April 2011 CNN national opinion poll found majority support for same-sex marriage.

What is striking in comparing these two issues is that abortion access is more directly relevant to a larger number of people in the United States than sex-same marriage is. More than half of American women will experience an unintended pregnancy and 30 percent will have had at least one abortion by age 45. In comparison, little under 4 percent of the American population identifies as gay, lesbian, bisexual or transgender, of whom presumably only a proportion will want to settle in a same-sex marriage.

The broad support for marriage equality is certainly a testament to the organizing power of the LGBTI movement. It is also a reflection of more motivating messaging: same-sex marriage is an issue of equality that affects us all—an early court decision in Vermont on same-sex partnership rightly referred to “our common humanity” as the central point.

By contrast, through keeping its main focus on privacy the movement for abortion access is hamstringed: it divorces profoundly private decisions from general support for parenting, women’s equality, and access to comprehensive health care. Partially because of this, many women and girls who need abortions feel they are alone in battling the restrictions that apply to their situation, be it mandatory waiting periods, the additional cost of medically unnecessary sonograms, or the ban of the abortion procedure that best serves their health.

Governments absolutely have an interest in and right to regulate the provision of and access to medical services, including abortion. But the regulation cannot be based on the personal morals of the legislator or on a poorly veiled intention to eliminate needed health care options for just some people—in this case women.

Or, as Justice Ginsberg noted: “Our obligation is to define the liberty of all, not to mandate our own moral code.” Privacy does not adequately express that sentiment. It also does not adequately express the fact that abortion is a medical intervention three out of ten women in the United States will have needed by the time they are 45. Imposing undue burdens on access is an affront to us all.

Gay Marriage: The Issue Is Respect

@HuffingtonPost

Earlier this year, a student in a human rights seminar I was teaching declared her conviction that gay parents damage their children by virtue of being gay. I explained as gently as I could why this is a discriminatory notion, incompatible with human rights standards, and moved on. My student sat as if stunned for two minutes, then gathered her books and left the class.

She later confronted me outside the classroom, and I was astonished to see just how fervently she insisted that her opinion was both based on science and respectful of rights. Neither is true. As New York State joins the ranks of countries and other jurisdictions recognizing same-sex marriage, it's worth reflecting on rights and respect.

The fact is that thousands of human beings are subjected to violence across they globe simply because they are suspected of being gay. In Brazil alone, over 2,500 men were murdered between 1997 and 2007, ostensibly for being gay. In the United States, the It Gets Better Project has highlighted the sustained violence and bullying young people suffer just because they aren't straight. This month, the United Nations Human Rights Council for the first time condemned violence and other human rights violations based on a person's sexual orientation or identity.

Of course, those who oppose same-sex marriage in New York State and elsewhere are not saying they support violence against LGBTQ people. Nevertheless, the same basic proposition lies at the root of both: the notion that you are somehow a different -- lesser -- type of human being if you are not, or are not seen to be, straight, and that society is justified in rejecting you.

For too many people it is only a short leap from seeing homosexuality as offensive to justifying physical harm. In this way, for example, the ban on inter-racial marriage in this country coexisted with societal acceptance of violence against people of color. Many times, inter-racial couples suffered violence precisely because they dared to break the ban.

But perhaps the deepest-held notion is the one that was expressed so vehemently by my student: that all children brought up by LGBTQ persons are psychologically damaged. Fortunately, it is increasingly recognized that it is not exposure to diversity but rather to bigotry and prejudice that is damaging to kids. In 2008, the European Court on Human Rights held that France was not allowed to deny the adoption application of a women just because she was a lesbian. And in February, the High Court in the United Kingdom barred a couple from becoming foster parents because their anti-gay views were held to be potentially harmful to the children who would be in their care.

In fact, research shows that children with gay parents are just as likely to be well-adjusted as children with straight parents, and that the key to childhood adjustment is good relationships between parents and children and between the parents themselves.

Marriage, of course, does not guarantee good relationships. But where family leave and other benefits depend on marital status, children are disadvantaged if their parents are not allowed to marry. The vote in Albany this week is significant because it is another step toward guaranteeing children and adults the rights and respect they are entitled to.