From Divergence to Convergence? A Comparative and International Law Analysis of LGBTI Rights in the Context of Race and Post-Colonialism
Wilets, James D., Duke Journal of Comparative & International Law
Understanding diverging and converging state approaches towards lesbian, gay, bisexual, transgender, and intersexual (1) ("LGBTI") rights is particularly important in the international and comparative law context. International law is based on values, traditions, standards, and norms accepted globally, although not necessarily by every culture or country. (2) The process by which international human rights law recognizes certain rights as fundamental is a relatively slow dialectical process. This approach is appropriate for a legal system that seeks a consensus before determining which rights are fundamental to human beings in all parts of the world, inuring to individuals because of their status as human beings and not because they are citizens of a specific country. The Preamble of the Universal Declaration of Human Rights proclaims that the international community's "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world." (3) The legal justification under international law for extending legal recognition of same-sex unions becomes more compelling once it is noted that accepting sexual minorities as equal members of society is not specific to only a small number of countries. The arguments for cultural relativism in the context of LGBTI rights are shorn of their power when it is understood that much of the contemporary opposition to gender nonconformity and homosexuality comes not from indigenous practice but largely from modern and predominantly Western phenomena.
Many of contemporary societies are simply remedying the damage wrought by the advent of historically aberrational virulent homophobia associated with Judaism, Christianity, and Islam, imposed on large sections of the world through conquest or colonialism. In large sections of the United States, Christian denominations developed and promulgated a particularly vicious hierarchical view of racial and gender relations to theologically justify the institutions of slavery and apartheid.
Diverging and converging state approaches to LGBTI rights are also important in the comparative law context. Many commentators on LGBTI issues tend to conceptualize LGBTI rights as a linear development flowing from an enlightened Western sociopolitical approach to human rights. This view is inaccurate and undermines both domestic and global battles for LGBTI rights. It undermines the domestic battle for such rights because it locates the struggle for LGBTI rights in opposition to those who view such rights as the recent invention of a secular, humanist human rights movement. (4) It undermines the global battle for human rights because LGBTI rights are incorrectly viewed as a Western construct, hegemonically imposed on the rest of the world. To the extent that people generally perceive homosexuality and sexual minorities as strictly a product of contemporary Western society, (5) people are unlikely to accept that sexual minorities deserve protection in their legal system or in the legal system of the international community of which they are a part. (6)
This Article begins by discussing the attitudes and relative tolerance of the world's indigenous and pre-Judeo-Christian-Islamic societies towards same-sex relationships, with the caveat that societies' tolerance or acceptance of same-sex relationships historically did not necessarily mean tolerance or acceptance of gender-nonconforming relationships. (7) The Article then discusses the expansion of a virulent Judeo-Christian-Islamic and Marxist-Leninist homophobia across much of the world. In the United States, slavery further aggravated this dynamic, which created unique American Christian denominations with a racist theology in order to support the institutions related to slavery or racism. As might be expected, these U.S. religions also adopted a hierarchical view towards gender relations, consistent with the close correlation between racism, sexism, and homophobia. …