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2007-11-16

33. LGBT Human Rights: the Search for an International Strategy

LGBT Human Rights: the Search for an International Strategy 
 
Keynote Address at the Conference on “The Global Politics of LGBT Human Rights”, 
Friday 16 November 2007 at the University of Glasgow (Scotland, UK).
 
 
JOKE SWIEBEL 
Former Member of the European Parliament and Co-President of the International Conference on LGBT Human Rights, Montreal, July 2006. 
 
 
 
Ladies en gentlemen,  
 
 
The Global Politics of LGBT Human Rights is a relatively new and fascinating subject. 
I feel honoured to be invited to address this conference and I am grateful towards the organizers, who took the initiative and towards the University of Glasgow, which made it possible. 
 
Many social and political movements and organized groups in civil society go international at a certain point in their history. INGO’s are build: international NGO’s, international non-governmental organizations. One step further is taken when these INGO’s start knocking on the doors of IGO’s, the international governmental organizations. 
 
As far as I know, women’s INGO’s were the first to do so. Already in 1919 during the Peace Conference, representatives of the international women’s movement were received by President Wilson in his Paris hotel, when he was negotiating a constitution for the League of Nations. This was the starting point for a long history of organized women’s lobbying efforts at the League of Nations and its successor, the UN. 
 
The gay and lesbian movement had already some international links before the First World War, but had to wait until the seventies before a permanent international organisation came off the ground. ILGA was founded in 1978. It was not before the nineties that the LGBT movement got access to the European Union and managed to get the issue at the agenda. In the United Nations that fight continues until today.  
 
Let’s first speak about the European Union. The issue of the rights of gays and lesbians appeared on stage in the early eighties when the European Parliament after heated discussion adopted the Sqarcialupi report (1983). In this report, the European Commission was asked to table proposals to combat discrimination against homosexuals in employment. Nothing of the kind actually happened of course in those days.  
 
It was only a decade later that the European Commission started consulting with Stonewall and ILGA and that some small subsidies were given for research projects. In this way, in the early nineties the LGBT movement had gained access to at least two of the EU institutions, the Parliament and the Commission. But in order to get the issue of gay and lesbian rights really on the agenda, first the problem of the lacking legal base had to be solved. 
The only type of discrimination that the European Community had been dealing with to that day, was unequal treatment of women and men at the labour market. This competence was based on art. 119 of the Rome Treaty of 1957 that required equal pay in order to establish fair competition between the member states. So, reform of the Treaties was needed. 
 
The European Parliament adopted a second report on gay and lesbian rights, the Roth report (1994). This report, by the German Green MEP Claudia Roth, asked for measures against discrimination in all sphere of life and even put the issues of marriage and adoption on stage. The Roth report raised the profile of gay and lesbians rights and this had its impact at the Treaty reform negotiations. The final result was the now famous art. 13 TEC, that enlarged the competence to take measures against discrimination to go beyond the labour market and included five new discrimination grounds – among them sexual orientation. This happy result was finally settled at the Summit of Amsterdam (1997) ; this is a story that many of you will know.  
 
Before I continue, I would like to make a few side remarks. 
First, the influence of the gay en lesbian movement in these years was to a great extent an inside-job. The EP reports that I mentioned were drafted by gay activists who had jobs as assistants in some parliamentary groups. The lobby that resulted in article 13 TEC was co-ordinated by the same activists, now under the logo of the so called Intergroup for Gay and Lesbian Rights. At the European Commission, it was not only the representatives of the gay movement who were knocking on the door, but also the fonctionnaires who let them in. They welcomed new competences and new problem areas to work on. 
So apparently – a lesson to be learned - working from within the system is something that may help to get your issues on the agenda. 
 
Secondly, this story is not documented and analysed very well. In my view, the reasons why sexual orientation discrimination reached the EU agenda are twofold: global politics and smart ‘politicking’. Racist violence in Europe was clearly on the increase the early nineties, when the fall of Communism and growing migration and globalisation gave rise to vast economic and social changes. This moved European politicians to demand EU measures against racial discrimination – to force the member states to put anti-discrimination laws in place. The LGBT lobbyists used the tactics of coattail-riding to include sexual orientation discrimination in this new policy area. They made use of a new network of activists inside and outside the institutions. 
Researchers should put this period, from the late seventies to the coming into force of the Treaty of Amsterdam in 1999 on top of their priority list. If they wait too long, the reminiscence will get blurred and people involved will be too old. 
 
Let’s get back now to the story, the story of how LGBT human rights issues were taken on board by the European Union. We have seen how access was obtained and how the issue came to be part of the agenda, because a new competence was inserted into the Treaties. 
In the meantime also something like a vision was developed. With a subsidy from the Commission, some publications were written that explained why equality for gays and lesbians was a relevant issue for the EU. The EU was no longer a purely economic institution. Its growing focus on social issues offered a nice stepping stone for the rights of gays and lesbians. 
 
This was the state of play at the beginning of the fifth legislature of the European Parliament that started in 1999. That was the moment that I became a MEP. 
 
The new legislation based on article 13 TEC was passed in a few months, without much of the controversy that was predicted on forehand. The reasons for this were purely political. The Council embarrassed by the building of a coalition government in Austria, in which Jorg Haider’s xenophobic Freedom Party took part, wanted to show a firm stance against racism. This led to the very swift adoption of the Directive against Race Discrimination, in June 2000. The second Directive, that dealt with discrimination on the basis of religion or belief, disability, age and sexual orientation, was adopted a few months later, in October 2000. Nobody wanted to give the impression that these other types of discrimination were considered as less important than racial discrimination. 
 
This does not mean that such an imbalance was absent. That imbalance was contained in these legal texts themselves.  
Racial discrimination is now the type of discrimination against which EU legislation offers the most elaborate protection. The scope of this legislation covers employment, social security, social protection, heath care, social advantages and access to goods and services, including housing. The other “new” grounds for discrimination (religion or belief, disability, age and sexual orientation) are only covered by the prohibition of discrimination at the labour market. 
 
This situation is often called the ‘equality hierarchy’. EU anti-discrimination law itself discriminates between the various grounds of discrimination. As a result, different groups enjoy a different standard of legal protection against discrimination. Such a hierarchy of discrimination sends the wrong political message, i.e. that some animals are more equal than others. This hotchpotch of rules simply is bad legislation, it complicates the administration of justice and offers no transparency for citizens. 
 
This was one of the main issues that the Intergroup for Gay and Lesbian Rights in the EP took on board. It has taken seven year before there came some light at the end of the tunnel. Only recently – at the ILGA Europe annual conference in Vilnius at the end of October - the European Commission has announced to propose a directive which will address the hierarchy of EU anti-discrimination laws and will introduce a ban on discrimination because of sexual orientation in areas other than employment. But still its final adoption by the Council remains uncertain. 
 
The Gay and Lesbian Intergroup has also lobbied on various other issues. It will take too much time to elaborate on them. I will simply mention some results. 
 
In 2000, six of the ten accession states still had discriminatory provisions in their penal codes, containing different ages of consent for same-sex sexual activities compared to different-sex sexual activities. We convinced the Commission that abolishing these paragraphs had to belong to the Human Rights criteria that the acceding states had to fulfil. In 2004 all six countries had abolished these provisions. In this way, LGBT rights were in fact for the first time conceived as Human Rights. 
 
In 2000, the European Council decided to approve the Charter of Fundamental Rights. Members of the Intergroup for Gay and Lesbian Rights were active as members of the Convention that drafted the Charter or were actively lobbying their colleagues. Article 21 of the Charter contains a general non-discrimination clause, that also incorporates discrimination on the basis of sexual orientation. The upcoming revision of the European treaties will confirm that the provisions of the Charter are legally binding on the members states – although some member states have secured an opt-out. But long before this day, lawyers have observed that the European Court of Justice has invoked the Charter as if legally binding.  
 
We also tried to stimulate the European institutions to promote LGBT rights as human rights in its foreign policies. We tried to apply this idea when the Parliament had to vote on a Association Agreement with Egypt. This was in 2001, when persecution of gays in Egypt hit the headlines. The votes counted were not enough to send that agreement back, but the debate was on. 
 
The issue of the so-called free movement was another policy question in which we tried to mainstream LGBT human rights. EU citizens and their family members have under certain conditions the right to move freely to and take residence in another EU member state. The issue is whether a partner of the same sex is also considered to be a family member. In the end a strange compromise was found: member states are not obliged to guarantee entry and residence of such a partner, but must ‘facilitate’ it. I depend on your character whether you will judge that the glass is half full or half empty. 
 
Summarizing: LGBT human rights at the EU is no longer one simple demand, but is broken down in a series of specific demands formulated in the context of a variety of sometimes highly technical policy issues. LGBT human rights are being mainstreamed and have become a normal part – be it still highly controversial – of the normal policy making process. 
 
When I look back on the period of struggle at the EU, it seems to me that we can distinguish some stages. Social and political movements, such as the LGBT movement, have various stages to go through – or barriers to overcome - in approaching international organisations. 
 
(1) they must get access to the organisation; 
(2) they must define the problem in such terms, that the international organisation they approach can be expected to contribute to its solution, in other words: they must produce a vision with some legitimacy; 
(3) they must see that the problem is really taken on board by the organisation, i.e. is put on the agenda; 
(4) they must develop specific demands, i.e. break down the issue in edible bites and deposit each chunk in the appropriate letterbox. 
(5) And finally, of course, they must organize the necessary political support to see their demands go through the internal decision-making process and reach the outcome they desire. 
 
When we take this simple list and look at the United Nations, we are reminded that there making progress was more difficult. Right-wing Catholics and fundamentalist-Islamic states have formed an unholy alliance that systematically tries to block recognition of LGBT rights as an UN issue. 
 
The question of access, demanded for the first time in 1992, was only settled last year, when ILGA-Europe and two other organization finally got the so-called consultative status. ILGA itself (ILGA-world) still has not obtained this status, however, and the applications of other organisations are still put on hold. 
 
Attempts to put the issue of LGBT rights at the UN agenda have met firm resistance so far. In 1995, the Fourth World Conference on Women, held in Beijing, refused to incorporate the words ‘sexual orientation’ in the final document, the Platform for Action. The Commission for Human Rights, and later the Human Rights Council, have so far refused to deal with the issue. In the meantime, some treaty bodies, special rapporteurs and working groups have considered violations of the human rights of LGBT persons. These cases have been dutifully documented by the International Commission of Jurists, the ICJ. (Philip Dayle). 
But the main human rights forum of the UN at the intergovernmental level does not recognise LGBT rights as human rights. 
 
It is here that Montreal Conference (July 2006) comes in.: the International Conference on LGBT Human Rights of the 1st World Outgames. The main aim of this conference was underlining that LGBT issues are Human Rights issues and explain why. The conference attended by 1500 people had of course other purposes as well: sharing best practices, building new alliances, forming networks et cetera. I will mention here the two highlights of the Conference: the speech by Louise Arbour, the UN High Commissioner for Human Rights, and the adoption of the Declaration of Montreal. 
 
The opening address by Louise Arbour went directly home to the audience. Here we were listening for the first time to a high official of the UN who told us that LGBT individuals were entitled to the same protection of their human rights as everybody else. Who stated that laws criminalizing homosexuality should be repealed and that cases of violence against LGBT’s should be investigated and brought before the court. 
 
The Declaration of Montreal was an attempt - perhaps the first one – to summarize the main demands of the international LGBT movement in the broadest possible terms. The aim was to put these demands at a higher level by explaining them in the language used in international organisations. Of course, another aim of the Declaration was to lend some glory to the City of Montreal, for hosting the first world Outgames. By putting this sports event for LGBT’s from all over the world in to a ‘frame’ of human rights, the Declaration added also prestige and status to the event. The Outgames organisers clearly did not want to present the event only as ‘gay fun for gay people’ with ample song and dance, but wanted to deliver a serious message. 
 
The Declaration tried to explain and illustrate LGBT issues as human rights issues, but did not go into legal details. The Declaration was not intended as a document of international human right law, such as the Yogjakarta Principles that were launched earlier this year. The Declaration of Montreal was intended as a political document. We had in view to enlarge the legitimacy of the demands of the LGBT movement and facilitate their access to the political arena. We wanted to strengthen the self-confidence and the respectability of the LGBT movement as a relevant political actor.  
 
Some indication of the use made of the Declaration of Montreal, is that its is translated in Bahasa, for use in Indonesia, and in Catalan, for use in Catalonia. It is also taken on board by some City Councils and by some political parties and trade union organisation. The direct effect of the Declaration is difficult to measure. But I think it is no coincidence that in December 2006 at the meeting of the Human Rights Council the intervention by Norway asking to put violations of human rights on the basis of sexual orientation and gender identity on the agenda, was supported by 54 UN member states, among which also some countries in Latin America and Asia. And perhaps it is no coincidence that in the same month three LGBT organizations got finally consultative a status at the UN. 
 
Back to my list of five conditions that have to met or barriers that have to be overcome, before new issues and new actors are incorporated in organization: (1) get access, (2) draft a vision, (3) get a place on the agenda (4) spell out specific demands and (5) get support and push them through. The Declaration of Montreal clearly belong under (2), a vision written to boost legitimacy. The Yogjakarta Principles is literally a list of specific, sometimes very specific demands, item (4). My question is whether such a list will work, as long as the issue at large is not accepted as a legitimate part of the agenda of the UN.  
 
Finding the right strategy for the international LGBT human rights movement is not easy. Knowing how international organizations work and finding allies within these organizations are important conditions. Not falling into the trap of utopianism is another wise lesson to be learned. At least, that is my story. I look forward to hearing many other stories today. 
 
Thank you for your attention. 

 

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