10 Dec 2008
Gay rights: Palpable progress
Despite ongoing discrimination, legal strictures and uneven progress, significant advances in extending and protecting sexual minority rights have been made, Dominic Moran reports for ISN Security Watch.
By Dominic Moran in Tel Aviv for ISN
As the international community celebrates the 60th anniversary of the UN Universal Declaration Human Rights, significant moves are afoot internationally and in certain states to protect and extend the rights of lesbian, gay, bisexual and transgender (LGBT) communities.
The victory of Proposition 8 in the recent California ballot, and of similar US state measures re-imposing bans on gay marriage, was a major blow to the LGBT rights movement in the US, and to the 18,000 same-sex couples who wed in California during the brief window of official recognition.
Nevertheless, the shift in the debate towards acceptance of full homosexual matrimony is but one sign of the significant progress made in LGBT rights reform in many countries in recent decades. The pace of such reform differs markedly from country to country (and often within states).
ISN Security Watch spoke to LGBT activists in Hong Kong, China, Australia and Israel concerning the legal and popular standing of sexual minorities in their countries.
Hong Kong/China: Stilted progress
The periodic persecution of homosexuals in the early decades of communist rule appears to have given way post-1979 to a general failure on the part of authorities to either promote or stand in the way of reforms.
Nevertheless, important developments have occurred in recent years with the Peoples' Republic publishing a new version of its classification and diagnosis criteria of mental disorders in 2001, excluding homosexuality from the list for the first time. Homosexual relations were decriminalized in 1997.
A gradual loosening of the taboo on reportage of LGBT issues does not appear to have kept pace with the reportedly rapid growth of academic interest in sexual minority issues in recent years.
Religious proscriptions concerning homosexual relations are less clear cut in traditional Chinese society than in societies influenced by the major monotheistic religions with the issues of filial duty to maintain the family's male line of seeming primary concern.
"I think there may be more stigma against gay men than lesbians because in Chinese tradition it is still quite a patriarchal society and the old way of thinking is that the son should continue the family line by having children," Eleanor Cheung from Hong Kong's Queer Sisters, told ISN Security Watch. "But I think the attitude is changing with the younger generation."
A survey of public opinions on homosexuality this year, found that "20% of Chinese people think there is nothing wrong with [homosexuality]. 30% think that it is 'a little wrong' but not completely wrong, and 40% think it’s completely wrong."
The 10-question survey tended to throw up contradictory answers reflecting a seeming ambivalence or lack of public knowledge on LGBT issues, with 91 percent supporting full employment rights for homosexuals and 70 percent expressing opposition to gay marriage.
Cheung noted that the most adamant opposition to homosexual rights reform in Hong Kong was coming from "Christian fundamentalists." One such group is The Society of the Truth and Light, she said. "In April 2005 they bought pages in the newspaper to advertise peoples' signatures to lobby the government not to pass any legislation to protect gay and lesbian rights. They are very wealthy and they have been pushing very hard."
With official and public attitudes on the issue of homosexuality far from clear, the status of LGBT law reforms and jurisprudence on rights issues in Hong Kong give perhaps the best indicator of the future trajectory of public policy on sexual minority issues.
"In Hong Kong sodomy was decriminalized back in 1991," Cheung noted, "but since then there hasn't been much going on because there is still no anti-discrimination legislation to protect the rights of sexual minorities."
"It is legal to fire somebody because they are gay. It won't be a very popular thing to do but still there is no law to protect [against] it," she said.
"Last year they fought a court case for the equal age of consent because in the past the age of consent between males, for sodomy anyway, was 21 years old, whereas for heterosexual couples it is 16 years old for vaginal sex," Cheung said, adding, "They still haven't amended the law yet but the court has ruled that it is unconstitutional."
In July 2007, Hong Kong's Court of Final Appeal set a second important legal precedent in rejecting a government appeal against a lower court's acquittal of two homosexual men who admitted engaging in sodomy in a public place - for which they could have received five years in prison under a 1991 law.
Asked what issues Queer Sisters were pressing for action on, Cheung said, "Basic legal rights protection: anti-discrimination legislation […] And then obviously for the state to recognize same-sex partnership. That would be wonderful. But at the moment I think that there's a long way to go."
Jerusalem: Pride and prejudice
As in the nationalist conflict, Jerusalem lies at the heart of the struggle for LGBT rights in Israel and Palestine. Jerusalem's LGBT community finds itself irrevocably caught in two societal culture wars between religious and secular tendencies, which, over time, will determine the public role of religion in Palestinian and Jewish-Israeli societies.
Director of Jerusalem's Open House Yonatan Gher told ISN Security Watch, "Israel is one, in a good list of countries to abolish the anti-sex between same-sex couples law. That was done in the 1985."
"Since then, most LGBT rights come more from Supreme Court rulings rather than legislation," he said.
In 2005, mounting opposition from Muslim, Jewish and Christian religious authorities led to the cancellation of Jerusalem's World Pride event - a major international LGBT gathering held in a different global city every few years.
Referring to World Pride, Gher said, "that raised severe objections from the entire religious establishment in Israel, creating what we call 'a coalition of the unwilling' between extreme leaders of all major religions."
"It was kind of nice to see that we were able to bridge [the gaps]; that the fundamentalists actually sat together and agreed on something," he joked.
In 2005, amidst rioting in ultra-Orthodox neighborhoods, three marchers in the city's annual pride parade were stabbed by a Jewish religious extremist, who received 12 years in jail for the crime.
Repeated legal challenges by organizers against municipal and police efforts to halt the march and opponents continued this year but have failed to halt the parade.
Gher revealed that "discreet relationships were established between the Jerusalem Open House and the ultra-Orthodox leadership," which resulted in an agreement that the 2008 march would be held with little to no opposition.
"In part, I believe that has to do with the ultra-Orthodox leadership understanding that by opposing the march they are actually creating a lot more visibility for the issue in their own community, which is something that they didn't actually want to achieve," he said.
With the growing preponderance of conservative Muslim and ultra Orthodox residents in Jerusalem, the trauma of coming out for homosexual, bisexual and transgender individuals is often compounded by complete societal rejection.
"Their sexual identity clashes with their religious identity; with their national identity; in any case with the expectations of their families. So almost always inherent in these situations is a need to either be in the closet for their entire lives or to leave their family and community," Gher said.
With personal status issues controlled by religious authorities in both Israel and the Palestinian territories, the prospects for future official recognition of secular and gay marriage appear dim.
"In '95 there was the first ground-breaking ruling having to do with an El Al steward who wanted the same rights for his partner as other stewards and stewardesses have for their spouses," he said. "Based on this a second case was brought from which, all the rest of the domestic partnership rights come."
Gher and his partner recently celebrated the birth of their baby son, fathered with a surrogate in India. Recognition of their familial status was secured under a Supreme Court ruling forcing the intransigent Interior Ministry - in which religious party appointees enjoy significant authority - to toe the line on registering same-sex couples.
To Gher, "More and more of liberal Israel is advocating much more strongly for LGBT rights than they have in the past. And at the same time, while in the 80s the religious establishment was trying to ignore the issue, now they have moved towards active objection."
Australia: New dawn
The fall of the John Howard government last year has led to a diametric shift in federal government positions on the issue of LGBT rights, opening up the possibility for sweeping reform.
The 12 years of the Howard government retarded the development of homosexual rights recognition, with the federal government twice shooting down Australian Capital Territory (ACT) bids to secure the official status of same-sex unions under the guise of "civil relationships" or "civil unions."
In 2004, Howard openly expressed his personal opposition to both gay marriage and adoption by same-sex couples. Attorney General Phillip Ruddock introduced emendations to the federal marriage law in the same year, strengthening the ban on gay marriage through stipulations defining marriage as the "union of a man and a woman to the exclusion of all others."
The new Labor government tabled around 100 changes to legislative statutes designed to bolster LGBT rights in May, and Victoria has followed ACT and Tasmania in becoming the third state or territory to recognize same-sex unions.
Asked what some of the more important changes proposed by Premier Kevin Rudd's government were, Corey Irlam, spokesperson for the Australian Coalition for Equality, told ISN Security Watch: "Equal superannuation benefits, equal taxation laws for couples, recognition of same-sex parents."
As in other countries, the progressive marginalization of socially conservative attitudes and political stances on LGBT rights has come with greater acceptance of same-sex relationships in the wider populace.
"Over 72 percent of Australians in a poll in July 2007 indicated their support for the central same-sex reforms," Irlam said, noting. "This is a vast increase over the last decade."
Asked what he put the shift down to, he said, "I think it has been a long campaign. There has been more visibility of gay and lesbian people in the media; there's been more visibility in shows and just general acceptance in the backyards of Australians."
Irlam noted that attacks against LGBT individuals continued, saying, "Homophobic violence in rural Australia is particularly prevalent."
The Labor government and the states and territories continue to oppose the legalization of gay and lesbian marriage, while moving in many cases to give extensive partnership, and to a lesser extent, parenting rights to homosexual couples.
"Overall, gay rights in Australia are moving in the right direction, but until equal marriage provisions are provided gays and lesbians will still be second class citizens," Irlam said.
The extension of full civil rights regarding personal status issues for sexual minorities remains a work in progress in many states and a complete non-starter in the over 80 countries where homosexual sexual relations remains a criminal offense punishable by imprisonment and - in nine countries or regions - physical measures up to and including execution.
France's junior minister of state for foreign affairs and human rights, Rama Yade, announced in September that her government would be moving to directly address the issue at the UN this month, promising to submit a draft declaration to the UN General Assembly on behalf of the EU for the universal decriminalization of homosexuality. British Prime Minister Gordon Brown has explicitly stated his support.
"We are writing to the [Australian] Foreign Ministry to see if they'll support the French resolution," Irlam noted. The US and Australia are notable omissions from the list of around 50 countries supporting universal decriminalization.
The draft declaration refers explicitly to the European Parliament's recognition of a wave of hate speech in many member states against the LGBT community, singling out the Party of the League of Polish Families as particular culprits. The UN Human Rights Committee pressed the Polish government in April on the alleged harassment of gay rights activists, while problems have also been officially noted in Croatia, Lithuania and Russia - though Croatia has signed on to the French declaration.
With the decriminalization declaration almost certain to be struck down in an open vote, France is seeking to push it as a UN "solemn declaration."
While the chances remain slim, the taking up of the French declaration by the UN could provide a key marker in international efforts to make illegitimate the persecution of sexual minorities.
Dr Dominic Moran, based in Tel Aviv, is ISN Security Watch's senior correspondent in the Middle East and the Director of Operations of ISA Consulting.
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