The Salzburg Global LGBT Forum discusses pressing LGBT human rights concerns around the world in hope of creating further and more effective LGBT-inclusive legislative agendas
Ahead of the inaugural session of the Salzburg Global LGBT Forum, Archbishop Desmond Tutu sent a message of support: “As I wrote in the Lancet last July, ‘In the future, the laws that criminalize so many forms of human love and commitment will look the way apartheid laws do to us now – so obviously wrong.’ We know that LGBT people are a part of every human community. “We therefore need a forum for a truly global conversation about how they contribute to, and are affected by, the law, culture and creativity – and how we can ensure that their voices are heard and understood. I applaud Salzburg Global Seminar for deciding to hold a session on LGBT and Human Rights: New Challenges, Next Steps, at which all regions of the world will be represented, and I hope that it will mark the beginning of that global conversation.”
Five years on and the decriminalization of “human love and commitment” very much remains a challenge – and the global conversation plays an ever-growing role through which change can be encouraged, strengthened, but also endangered.
Many of the countries which still criminalize homosexuality and transgender expression base their discriminatory laws, now hailed as a signature of their sovereignty, on a former global process: colonization. The British Empire, in particular, has left an anti-LGBT colonial legacy in its former occupied countries; today almost 70 percent of states with a British colonial history continue to criminalize homosexual conduct. While Nepal, which was never colonized, has made rapid progress in the decriminalization of homosexuality, the recognition of gender identity and legal protections for its LGBT citizens, neighboring India, Bangladesh and Pakistan, like much of the Commonwealth, still all criminalize aspects of same-sex relations – a legacy of the British Empire’s anti-sodomy laws. In regard to legal support for transgender recognition, all three countries however have made stringent progress.
When the Forum was founded in 2013, 76 countries criminalized same-sex relations. Today, according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA)’s annual State-Sponsored Homophobia report, 72 states continue to criminalize same-sex consensual activity. (Former British colonies account for over half of these countries.) In 2013, only 65 countries had legislation offering protection to their LGBT citizens. Today that number is 85. On the issue of families, the number of countries that now have equal marriage and adoption rights stands at 23 and 26 respectively, up from just 14 in 2013. (The UK, a former proponent of anti-sodomy laws through its former empire, has now decriminalized homosexuality, allows gay marriage and adoption, legally recognizes changes in gender identity and offers a variety of protections against discrimination for its LGBT citizens.) Transgender people also have made significant legal progress and built a growing public understanding in some parts of the world; with the 2012 legal gender recognition legislation in Argentina, followed by similar laws in Colombia, Denmark, Ireland and Malta. In April 2017, the European Court of Human Rights ruled that requiring sterilization for legal gender recognition violates human rights.
But this progress is by no means certain. Nor does legal protection ensure societal respect.
Just as some countries have made steps forward, others have taken significant steps back. Most notable in this regard are Uganda with its Anti-Homosexuality Bill that tried to introduce the death penalty for same-sex relations, and Russia with its similarly notorious federal law “for the Purpose of Protecting Children from Information Advocating for a Denial of Traditional Family Values,” more commonly known as the “gay propaganda law.”
The struggle to advance LGBT rights through courts or legislatures has thus not always been as effective as hoped. As Mark Agrast, executive director of the American Society of International Law recalled at the fifth session of the Salzburg Global LGBT Forum in 2017, early moves to achieve marriage equality in a number of US states resulted in federal legislation to outlaw same-sex marriage nationwide. Only after years of effort and major shifts in public attitudes did the United States Supreme Court affirm that same-sex couples have a constitutional right to marry in 2016. Guatemalan human rights lawyer Mónica Leonardo offered another example to illustrate Agrast’s point: In 2017, Guatemala’s LGBT community proposed anti-discrimination laws in Congress – a move that triggered the threat of a counter law that would have legalized discrimination of LGBT people in areas such as marriage and sexual education in schools. Unless legal progresses are part of a broader strategy to change hearts and minds, such efforts can fall short, or even provoke a backlash.
Such setbacks exist at the global level too, explained South African human rights lawyer, Sibongile Ndashe, in 2013. After the equality resolution by the UN Human Rights Council from 2011, in which violations based on sexual orientation or gender identity were explicitly forbidden, many countries from the Global North encouraged the passage of a second resolution that would have established mechanisms to protect LGBT people against these violations. Although the initial resolution was spearheaded by South Africa and backed by other countries in the Global South, there was a strong lobby from the Global South in opposition to this approach, explained Ndashe, fearing a backlash from local governments and leaders.
Despite potential setbacks and backlashes, legal progress remains the most relevant tool to safeguard equal treatment of all citizens. In its yearly sessions of the Salzburg Global LGBT Forum, discussions on the rule of law led by human rights lawyers have been key to the Forum’s overall objectives. The role of international law was incorporated into the Statement of the Salzburg Global LGBT Forum: Advancing human rights for LGBT people and communities, urging that “Gender identity and sexual orientation […] be incorporated into procedures for documenting and monitoring human rights violations around the world.”
The key recommendation raised by Fellows year after year is: together with pushing forward an LGBT-inclusive legislative agenda, make sure that an educational campaign, media training and political networking go hand-in-hand. If equality legislation is strongly supported at the global level, make sure to understand the local situation and be guided by local human rights groups. Legal reforms should come hand-in-hand with public education schemes to ensure that once these laws have been enacted, both LGBT communities and the public know what the laws are, and the justice system upholds these laws, ensuring that the state and society-at-large respect them.
As one Fellow remarked: “Sometimes there will be opportunities where government passes something that sounds good but the lived realities of the intended beneficiaries mean that they aren’t able to benefit because the change [in society] has not happened yet.”
Aung Myo Min on his survey of how LGBT Burmese are affected by the colonial British sodomy law
Milan Antonijevic on combating LGBT hate crime in Serbia
Danish Sheikh on using the law to advocate for LGBT rights in India