Safeguarding the Rights of Sexual Minorities: The Incremental and Legal Approaches to Enforcing International Human Rights Obligations

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I. INTRODUCTION

The stark contrast between the aspirational, lofty language of international human rights treaties and the domestic laws of their signatories-not to mention official statements made by those signatory nations' leaders-is truly astounding. To note just one example of this disparity, Zimbabwe signed the International Covenant on Civil and Political Rights ("ICCPR"), pledging that its own "law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination."1 But in 2006, Zimbabwe passed legislation that makes it a crime for two people of the same sex to kiss, hug, or hold hands2-and Zimbabwe's current leader, President Robert Mugabe, has publicly stated that gays are "worse than dogs and pigs"3 and has urged members of his party to tie up homosexuals and bring them to the police to be arrested.4

Even in nations where both international treaties and domestic laws protect the rights of sexual minorities,5 violent hate crimes and other forms of discrimination still occur with shocking regularity. South Africa provides a particularly graphic example; it was the first African nation to adopt a constitution providing for, among other things, sexual minority rights6 and the first African nation to legalize same-sex marriage.7 Despite these measures-or perhaps, as this Comment will suggest, as a result of these measures-violent attacks against openly lesbian, gay, bisexual, and transgender ("LGBT") South Africans continue, with "corrective rape" occurring with some frequency.8 Certainly, antigay laws and state-supported discrimination can, and do, increase violence toward gays by legitimizing homophobia and by inciting the public, which previously might not have paid much attention to the LGBT community.9 Laws that protect sexual minorities are clearly a necessary condition-but not necessarily a sufficient one. The presence of domestic and international laws protecting gay rights is not enough to change a population's attitudes and actions toward the LGBT community.10

The international human rights community, though, generally sees changing laws as the necessary first step toward changing attitudes. Where treatment of, and attitudes toward, sexual minorities violate international human rights obligations, international human rights organizations have moved aggressively to advocate for change in domestic laws, with an eye to ultimately transforming attitudes and beliefs toward the LGBT community.11 Given the atrocities that have occurred in recent years,12 it would be unreasonable to expect that human rights organizations would refrain from taking immediate action. But why do international human rights organizations focus their efforts on changing laws, rather than changing attitudes, which could in turn lead to changing laws?

First, this "changing laws" approach has, on the surface, wrought many successes. Over the past two decades, international recognition of LGBT rights has improved dramatically under consistent pressure from human rights activists. The United Nations has, beginning with the ICCPR and the UN Human Rights Committee's ("UNHRC") decision in Toonen v Australia,13 taken a number of affirmative steps to advance the rights of sexual minorities. In the wake of those UN landmarks, LGBT rights organizations have generally agreed that the best way to advance their cause in domestic contexts is to pressure nations to adopt legislation or to alter their constitutions in favor of compliance with international treaties that promote privacy and equality.14

Second, were it equally difficult to change laws and attitudes, there is a strong argument that changing laws would be preferable. Laws that criminalize handholding or prevent human rights groups from organizing15 are detrimental not only to the LGBT movement, but also directly threaten individual privacy and autonomy norms. Most human rights organizations do not address this disparity, possibly due to the dearth of empirical data on the topic. …