Same-Sex Sexualities and the Globalization
of Human Rights Discourse
Carl F. Stychin*
In
the past decade, a double movement of
globalization has taken place in the realm of gay rights.
On the one hand, a globalization of human rights has
occurred, whereby human rights have become a key
criterion by which the progress of nations is evaluated.
On the other hand, there has been a globalization of same-
sex sexualities as identities. These movements have the
potential to conflict with, rather than complement, each
other in terms of progressing toward a greater recognition
of gay rights worldwide: resistance to cosmopolitan claims
to gay rights is often grounded in communitarian claims
based in the language of the right of self-determination of a
people. The article argues, howeverlargely through the
use of case studies (Tasmania, Zimbabwe, and Romania)
that the discourse of universal human rights can and has
been used successfully by local gay rights activists. This
has taken place through the use of several strategies: the
recognition of multiple and intersecting identities; the
development of a discourse by which international legal
standards become part of the essence of a people; and by
the reclaiming of an authentic gay past within a national
community context. In this way, gay rights activists have
become able to move seamlessly between discourses of the
local and the global. Ultimately, the article concludes, gay
rights struggles will be most successful when they not only
engage in the protection of human rights for individuals
based on international human rights standards but also fight
for inclusion at the level of communitarian political debate
within the larger society.
sur
un
fondes
Depuis dix ans, un double mouvement de
mondialisation a eu cours dans la sphre des droits des gais
et lesbiennes. Dune part, une mondialisation des droits de
la personne, par laquelle ceux-ci sont devenus une mesure
primordiale du progrs des nations. Dautre part, une
mondialisation des sexualits de mme sexe comme
identits. Ces mouvements ont le potentiel de sopposer
mutuellement plutt que de se complter et ainsi permettre
une reconnaissance plus grande des droits des gais et
lesbiennes dans le monde. Au cosmopolitisme animant la
reconnaissance de ces droits sopposent des revendications
communautariennes
discours
dautodtermination des peuples. Principalement sur la
base dtudes de cas (Tasmanie, Zimbabwe, Roumanie),
cet article soutient toutefois que le discours universel des
droits de la personne peut tre (et a t) utilis localement,
avec succs, par des activistes des droits des gais et
lesbiennes. Plusieurs stratgies ont t employes : la
reconnaissance didentits multiples et entrecroises ; le
dploiement dun discours par
les standards
juridiques internationaux forment une part de lessence
dun peuple ; et la
revendication dun pass gai
authentique lintrieur dun contexte communautaire
national. De cette manire, des activistes ont t capables
dutiliser la fois un discours global et un discours local.
Larticle conclut quen dernire analyse, les luttes pour les
droits des gais et lesbiennes connatront davantage de
succs si elles semploient non seulement protger les
droits des individus sur la base de standards internationaux
de droits de la personne, mais visent aussi linclusion au
niveau du dbat politique communautaire ayant cours dans
la socit civile.
lequel
* Professor of Law and Social Theory and Dean of the Faculty of Economic and Social Sciences,
The University of Reading, United Kingdom. An earlier version of this article formed the basis of a
plenary invited lecture delivered at the Activating Human Rights and Diversity Conference,
Southern Cross University, Australia, July 2003. A revised version was delivered as an invited lecture
to a conference entitled Thirty Years On: Sexuality, Law and Policy on the Island of Ireland,
University of Ulster, Northern Ireland, November 2003. The author thanks the participants at those
conferences for their insightful comments. Special thanks to Anneke Smit for her invaluable
assistance.
McGill Law Journal 2004
Revue de droit de McGill 2004
To be cited as: (2004) 49 McGill L.J. 951
Mode de rfrence : (2004) 49 R.D. McGill 951
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 49
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Introduction
I. A Double Movement of Globalization
II. From National Communities to Supranational Standards
III. Human Rights or Special Rights
IV. From Rights to Politics
Concluding Thoughts
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Introduction
Only a few years ago, it was sometimes queried whether sexual orientation
raised any human rights issues.1 Today, those questions have largely ceased to be
asked, as sexuality has permeated human rights consciousness. For that, an enormous
collective debt is owed to those many courageous activists around the world who
have struggled in difficult and dangerous circumstances to articulate their claims
openly in a discourse of human rights in order to better peoples lives. That is, they
have used human rights as a way to connect with others in and out of struggle and
to make a collective difference.
These human rights claims have also connected to the academic and judicial
interpretations of human rights. In the past decade, we have witnessed a far more
receptive attitude from courts and legislatures in a range of different ways. Same-sex
sexuality cases have come to receive a more positive response from many national
courts through the interpretation of domestic constitutional rights documents;2
through the development of the common law;3 through transnational legal regimes,
such as the European Union;4 and through the discourse of international law and
international human rights.5 Moreover, these different levels and frames through
which the language of rights can be mobilized often intersect and interact.6 As a
consequence, rights proponents can claim that the strategy of deploying human rights
in the sexuality arena has met with considerable success (but setbacks as well), and
believers in liberal legal progress will argue that there is nowhere to go but forward in
the making of human rights arguments.
I. A Double Movement of Globalization
This story of success and progress can be explained, I argue, through a double
movement of globalization. First, we have witnessed a globalization of human rights,
1 I was asked this very question by a law professor in 1994 at an academic conference on human
rights.
2 See e.g. Egan v. Canada, [1995] 2 S.C.R. 513, 124 D.L.R. (4th) 609; M. v. H., [1999] 2 S.C.R. 3,
171 D.L.R. (4th) 577; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2
S.C.R. 1120, 193 D.L.R. (4th) 193.
3 See e.g. Fitzpatrick v. Sterling Housing Association, [2001] 1 A.C. 27, [1999] 4 All E.R. 705.
4 For example, the adoption by the Council of the European Union of a general framework directive
on equal treatment in employment that includes sexual orientation among the prohibited grounds of
discrimination, which all Member States of the EU have been required to implement: EU, Council
Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in
employment and occupation, [2000] O.J.L 303/16.
5 See e.g. Toonen v. Australia (1994), CCPR/C/50/D/488/1992, online: Office of the High
Commissioner for Human Rights
6 For example, the development of domestic law may be informed by emerging international legal
standards.
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whereby human rights become, as Peter Fitzpatrick has argued, the pervasive
criteria by which nations approach a universal standard of civilization, progress, and
modernity.7 Rights transcend the particular (despite the fact that human rights
discourse presumably must come from a particular place) and become the marker and
measure of a global civil society embracing all humans (itself a historically
contested concept).
[Vol. 49
But there is another globalization move that has occurred: the universalizing of
same-sex sexualities as identities.8 There are many examples that demonstrate the
export of an Anglo-American, Stonewall model of sexuality, identity, and
liberation.9 In the Stonewall model, same-sex sexuality marks an identity category
that comes to be labelled as gay, lesbian, or both (and the two are often
problematically conflated). Put crudely, who (in terms of gender) one has sexual
relations with is the key to who you are, and the coming out is the central moment
of identity formation.10 The sexual relations model has increasingly transcended its
own cultural and historical roots to become universalized as the paradigm of sexual
identity. This paradigm, however, is a dramatic oversimplification of the dynamics of
sexual identity outside of a Western (or, more specifically, Anglo-American) frame.
Despite this globalization movement, activists in many non-Western countries
travel between the universalizing and essentializing discourse of sexual identity (we
are everywhere), to a local, historically and culturally-specific reading of sexuality
that resists the bluntness of the Stonewall model.11 Nevertheless, as gays come to
appropriate a sexual identity, the universalizing language of human rights neatly fits
the globalizing movement of sexual identity that seems to be occuring (most
obviously in urban spaces around the globe). Furthermore, this fusion of the two
movements of globalization has been advanced by human rights law and international
human rights experts, who have assisted activists in many parts of the world and have
brought to the attention of the world the abuses of human dignity that have been
experienced.12 Claims to privacy, equality, and dignity for those who have been
7 Peter Fitzpatrick, Modernism and the Grounds of Law (Cambridge: Cambridge University Press,
2001) at 120 [Fitzpatrick, Grounds of Law].
8 Dennis Altman, Global Sex (Chicago: University of Chicago Press, 2002); Martin F. Manalansan
IV, (Re) Locating the Gay Filipino: Resistance, Postcolonialism, and Identity (1993) 26:02/03 J. of
Homosexuality 53.
9 In using the term Stonewall, I am referring to the birth of contemporary American lesbian and
gay identity politics at the Stonewall riots in New York City in 1969.
10 On the centrality of coming out to a same-sex sexual identity, see Mark Blasius, An Ethos of
Lesbian and Gay Existence in Mark Blasius, ed., Sexual Identities, Queer Politics (Princeton:
Princeton University Press, 2001) 143. Note that I am passing over the interesting cultural question of
what constitutes the sexual. See e.g. Gilbert Herdt, Same Sex, Different Culture: Exploring Gay and
Lesbian Lives (Boulder: Westview Press, 1997).
11 See Arnaldo Cruz-Malav & Martin F. Manalansan IV, eds., Queer Globalizations: Citizenship
and the Afterlife of Colonialism (New York: New York University Press, 2002).
12 See e.g. Public Scandals: Sexual Orientation and Criminal Law in Romania (New York: Human
Rights Watch and the International Gay and Lesbian Human Rights Commission, 1998), online:
C.F. STYCHIN SAME-SEX SEXUALITIES AND HUMAN RIGHTS DISCOURSE
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constructed as less than human because of their same-sex sexual practices and desires,
clearly lend themselves to these universalizing and globalizing currents. In this way,
they become cosmopolitan claims to justice, which transcend the particularities of
time and place through the powerful argument that flows from the desire to be who
we are.13
955
Although the ways in which these human rights claims are made are important,
what is no less interesting are the ways in which they have been resisted in a number
of different cultural locations:14 we consistently find opposition to cosmopolitan
claims to human justice firmly grounded in a communitarian language that speaks to
the preservation of a particular communitys way of life, tradition, and often,
national or local culture.15 Of course, nation (like sexuality and human rights) is a
socially constructed, historically specific
to be
universalized.16 To use Benedict Andersons famous phrase, nations are imagined
communities,17 and it is this imagining that provocatively has been deployed to resist
claims for universal human rights through a reverse discourse that employs the
language of difference, specificity, history, community, and ultimately, the language of
rights itself.
identity, which has come
None of this should be surprising. It is well documented how the construction of
the imagined community of nation has frequently been realized through the
deployment of gender, race, and sexuality.18 Women have been constructed as
mothers to the nation, a discursive device by which procreation becomes central to
national survival.19 Race has also been part of the constitutive formation of the nation,
summed up memorably by Paul Gilroys phrase there aint no black in the Union
Jack.20 Less widely known are cases that demonstrate how, when the nation state
perceives a threat to its existence, that danger is frequently translated into
homosexualized terms. Male same-sex sexuality, for example, has been deployed as
Human Rights Watch
as Human Rights: Activism in Indonesia, Singapore and Australia (Oxford: Peter Lang, 2003).
13 On cosmopolitanism, see e.g. Kimberly Hutchings & Roland Dannreuther, eds., Cosmopolitan
Citizenship (Basingstoke: Macmillan, 1999); Gerard Delanty, Citizenship in a Global Age: Society,
Culture, Politics (Buckingham: Open University Press, 2000).
14 See e.g. Carl F. Stychin, A Nation by Rights: National Cultures, Sexual Identity Politics, and the
Discourse of Rights (Philadelphia: Temple University Press, 1998) [Stychin, Nation by Rights].
15 On communitarianism, see e.g. Elizabeth Frazer & Nicola Lacey, The Politics of Community: A
Feminist Critique of the Liberal Communitarian Debate (Toronto: University of Toronto Press,
1993).
16 See e.g. Peter Jackson & Jan Penrose, eds., Constructions of Race, Place and Nation
(Minneapolis: University of Minnesota Press, 1994).
17 Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of
Nationalism, rev. ed. (London: Verso, 1991).
18 See Stychin, Nation by Rights, supra note 14, c. 1.
19 See Nira Yuval-Davis, Gender and Nation (London: Sage Publications, 1997).
20 Paul Gilroy, There Aint No Black in the Union Jack: The Cultural Politics of Race and Nation
(London: Routledge, 1992).
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the alien other, linked to conspiracy, recruitment, the third column, and
ultimately, constructed as a threat to Western civilization itself.21
[Vol. 49
Interesting inversions of this discourse of civilization can be documented within a
post-colonial context. The southern African region provides perhaps the best known
example, particularly as demonstrated by the discourses employed by Robert Mugabe
in Zimbabwe, most famously around the Zimbabwean International Book Fair in
1995for which the theme was human rights and which was to feature a presence
by the organization Gays and Lesbians of Zimbabwe (GALZ). On the eve of the
opening, a letter from the state director of information advised the book fair trustees
that the government strongly objected to the presence of GALZ. The trustees,
claiming that they had been placed in an impossible position, cancelled GALZs
registration. A storm of protest ensued, much of it emanating from South Africa. In
this example, Mugabe skilfully used a discourse of colonial contamination to shore up
the post-colonial state, wherein homosexuality is attributed to the white colonizer, and
homosexual relations were the means he used to exploit and contaminate the
colonized sexually.22 Homosexuality becomes an abhorrent Western import.
This discourse is also an important means to strengthen the identity of the
beleaguered nation state and the masculine subject, under threat in the current
conditions of post-colonial globalization. The expulsion of homosexuals from the
imagery of the nation state becomes metaphorically equated with the erasure of the
white colonizer and, with him, his degenerate influence on a mythologized, pre-
colonial, pure African (hetero) sexuality. Condemnations of sexual perversion thus
are made in the name of an Afrocentric and specifically Zimbabwean national
tradition. In this trope, the defence of heterosexuality becomes essential to securing
the group right of self-determination of a people protecting its cultural heritage, pre-
colonial way of life, and very survival. This is a communitarian claim in defence of a
people against threats from globalization and (neo) colonial powers, and it also lends
itself to the language of international human rights (i.e., the right of a community to
preserve its way of life).
One can find parallel movements in the West, for example, in the campaign in the
mid-1990s over the decriminalization of same-sex sexual acts in the state of
Tasmania, Australia.23 The goal of this struggle was explicitly achieved through the
21 See L.J. Moran, The Uses of Homosexuality: Homosexuality for National Security (1991) 19
Intl J. Soc. L. 149; Lee Edelman, Homographesis: Essays in Gay Literary and Cultural Theory
(New York: Routledge, 1994).
22 See Stychin, Nation by Rights, supra note 14 at 89-114; Oliver Phillips, Zimbabwean Law and
the Production of a White Mans Disease (1997) 6 Social & Leg. Studies 471; Matthew Engelke,
We Wondered What Human Rights He Was Talking About: Human Rights, Homosexuality and the
Zimbabwe International Book Fair (1999) 19 Critique of Anthropology 289.
23 See e.g. Stychin, Nation by Rights, ibid. at 145-93; Wayne Morgan, Identifying Evil for What It
Is: Tasmania, Sexual Perversity and the United Nations (1994) 19 Melbourne U. L. Rev. 740;
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deployment of a discourse of international human rights (cosmopolitan claim), which,
it was successfully argued, had been incorporated into a set of Australian cultural
values (a communitarian argument) that trumped the particular claim to a uniquely
Tasmanian, heterosexual way of life. Australia has long entered into a range of treaty
obligations and has sought to abide by their terms domestically, such as the
International Covenant of Civil and Political Rights, which proved relevant in the
case of same-sex sexuality in Tasmania through its protection of the right to privacy.24
The explanation for the Tasmanian lawsan anomalous legal situation in Australia
was, as Australians will readily explain, the cultural peculiarity of Tasmania, an
island state removed from an island continent. Gays, like other outsiders such as
environmentalists, have been consistently constructed as those who had arrived in
Tasmania to undermine the traditional values of the people.
The implicit, and sometimes explicit, argument of opponents of decriminalization
thus was that to be an authentic Tasmanian was to be heterosexual. This was a
somewhat more complex and nuanced battle over communitarian and cosmopolitan
claims, but the language of rightsstates rightswas often deployed in defence of
the anti-gay laws.25 In this resistance to gay rights claims, the community itself is
constructed as under siege from powerful, metropolitan interests seeking to
undermine the rights of a disadvantaged and disenfranchised, politically incorrect
community.26 Moreover, it was argued that the federal system of Australia was
intended to protect states from these majoritarian impulses.27
Thus, theoretically, we can often find ourselves in a cul-de-sac of rights claims
spawned by the globalization of human rights and sexual identities. Resistance to gay
rights is grounded in communitarian claims to difference, specificity, cultural
authenticity, and history, which are also, in turn, grounded in the language of rights of
self-determination of a people. The question is then about which self, which group,
and which right to protect. What trumps what?
Although this may seem to be a theoretical dead end, a closer examination of
social movement struggles reveals that activists have had relatively little difficulty
rhetorically manoeuvering through the cul-de-sac. Gay rights activists, in an array of
cultural contexts, have become highly skilled in answering claims to cultural
Miranda Morris, The Pink Triangle: The Gay Law Reform Debate in Tasmania (Sydney: New South
Wales University Press, 1995).
24 The UN Human Rights Committee found the Tasmanian law in violation of privacy rights in
Toonen, supra note 5; International Covenant on Civil and Political Rights, 19 December 1966, 999
U.N.T.S. 171.
25 See Tim Tenbensel, International Human Rights Conventions and Australian Political Debates:
Issues Raised by the Toonen Case (1996) 31 Austl. J. of Political Science 7.
26 I explore this point in detail in Stychin, Nation by Rights, supra note 14, c. 6.
27 See Tenbensel, supra note 25.
[Vol. 49
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difference and cultural authenticity.28 Specifically, I refer here to local activists
engaged in social struggle resisting nationalist, heterosexist discourses, rather than
international lobby groups, which may themselves fall into the trap of a highly
cosmopolitan discourse that gives away too much of the communitarian ground to
their opponents.29 Moreover, international gay rights activism, particularly in some
forms that emanate from the United States, is sometimes itself in danger of forms of
neo-colonialism in relation to local contexts through its adoption of a discourse in
which a premodern, pre-political non-Euro-American queerness must consciously
assume the burdens of representing itself to itself and others as gay in order to attain
political consciousness, subjectivity, and global modernity.30
By contrast, local activists have adopted a number of effective strategies in
making claims to human rights, chief among which is a redeployment of the very
communitarian arguments that have been used against them.31 Rather than speaking
solely in cosmopolitan terms, we find gay activists first turning to local history and
the cultural past to question the idea of an authentic, opposite-sex sexuality and
tradition. In other words, they retell the story of nation, but with some new characters
introduced (or they redefine well-known characters in terms of sexual desire). It is a
reclaiming of a same-sex sexual history that challenges the idea that homosexuality
has polluted a sexually pure culture.32 This, of course, is closely tied to discourses of
colonialism. Activists sometimes claim to have discovered an authentic gay past, prior
to its condemnation by the colonizer and the missionary in the name of civilization
and Christianity. It may, for instance, involve reclaiming words within indigenous
languages to describe same-sex desire. This strategy has proven to be extremely
rhetorically powerful, albeit anthropologically problematic. It often falls into the trap
of reading Western, twentieth century identity categories, such as homosexual, back
into history and across cultures, which renders the analysis dubious. In response, it
can be argued that historical accuracy is not particularly the point, and that the
argument is not aimed at anthropologists. Rather, the rhetoric is politically salient and
powerful. It rewrites the history of community, allowing for its reimagination in more
inclusive terms.
28 See generally the case studies in Stychin, Nation by Rights, supra note 14; Carl Stychin,
Governing Sexuality: The Changing Politics of Citizenship and Law Reform (Oxford: Hart
Publishing, 2003) [Stychin, Governing Sexuality].
29 My point being that in adopting a highly universalist discourse, international lobby groups leave
themselves open to claims grounded in the language of cultural relativism.
30 Arnaldo Cruz-Malav & Martin F. Manalansan
IV,
Introduction: Dissident
Sexualities/Alternative Globalisms in Cruz-Malav & Manalansan IV, eds., supra note 11, 1 at 5-6.
31 See generally Stychin, Nation by Rights, supra note 14; Stychin, Governing Sexuality, supra note
28; Nicole LaViolette & Sandra Whitworth, No Safe Haven: Sexuality as a Universal Human Right
and Gay and Lesbian Activism in International Politics (1994) 23 Millennium J. of Intl Studies 563.
32 See e.g. Stephen O. Murray & Will Roscoe, Boy-Wives and Female Husbands: Studies of African
Homosexualities (New York: St. Martins Press, 1998).
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A second strategy that again tackles communitarian claims on their own terrain
has also proven powerful. Gay activists have skilfully devised a rhetoric that adopts
the theoretical idea of multiple and intersecting identities, which often provides an
effective response to the idea of a homogeneous, one-dimensional identity. For
example, placards at demonstrations in Tasmania that read GAY and TASMANIAN
provided an important counter to claims that these identities are mutually exclusive.33
This is often an important dimension of strategy. It forces opponents to concede that,
in their construction of the imagined community, indigenous gays do exist, and that
they have been expelled from the bounds of community, rather than having never
existed within it. In this way, gays are constituted as the disenfranchised and turned
into non-citizen others. They have been forced to migrate to more hospitable
surroundings and denied their right to participate as full political citizens of the
broader community, unless their sexuality is closeted within the private sphere.34 To
strip your own people of citizenshipand this, I suggest, is crucial to gay rights
argumentsis a move that is difficult to justify except in the defence of the survival
of a people (although anti-gay discourse often in the past has merged quite seamlessly
with an anti-communist discourse, which was described in precisely those terms).35
That argument itself begins to unravel when gay rights arguments are framed in the
language of privacy and equality. These are liberal values that most communities are
loathe to dissociate from rhetorically (although part of the difficulty with
cosmopolitan rights claims is the assumption of a liberal, universalist consensus,
which does not necessarily exist within communitarian discourse).
This leads to the third activist strategy. Activists construct the language of human
rights as an essential feature of the community in which the claim is being advanced.
In this moment, the cosmopolitanism of rights becomes part of the self-constitution of
a people and a community. It makes us who we are. This again proved very
effective in the Tasmanian context, in which international human rights discourse was
deployed as characteristic of the national law and of the Australian people.36 More
dramatically, it has been used very effectively by gay activists in the Republic of
South Africa, in which respect for human rights is a leitmotif of the Constitution of
the Rainbow Nation, with its extensive constitutional guarantees of equality and
rights.37 International legal standards thereby become part of the essence of a people.
This can sometimes also provide a means to erase conveniently egregious abuses of
33 See Morris, supra note 23.
34 On the phenomenon of gay migration, see e.g. Jon Binnie, Cosmopolitanism and the Sexed City
in David Bell & Azzedine Haddour, eds., City Visions (Harlow, England: Prentice Hall, 2000) 166.
35 On citizenship and sexual identity, see David Bell & Jon Binnie, The Sexual Citizen: Queer
Politics and Beyond (Cambridge: Polity Press, 2000); Shane Phelan, Sexual Strangers: Gays,
Lesbians, and Dilemmas of Citizenship (Philadelphia: Temple University Press, 2001).
36 Stychin, Nation by Rights, supra note 14 at 171-93.
37 See Pierre de Vos, The Constitution Made Us Queer: The Sexual Orientation Clause in the
South African Constitution and the Emergence of Gay and Lesbian Identity, in Carl Stychin & Didi
Herman, eds., Sexuality in the Legal Arena (London: Athlone Press, 2000).
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rights that have occurred in the very self-constitution and imagining of the nation. For
example, aboriginal peoples might have something to say about the rights-respecting
essence of white settler societies.
[Vol. 49
The strategy also may involve the attempt to universalize and essentialize the
concept of human rights, as activists claim a history of human rights in a non-Western
context. In other words, human rights, like homosexuals, existed prior to the
imperialist mission that devastated bothas part of a history of a communityand,
therefore, are culturally authentic today.38 Once again, this is undoubtedly
anthropologically problematic, for both human rights and homosexuality are
historically and culturally contingent.39 They are a product of a time and place.
Nevertheless, it may be a rhetorically and politically useful strategy.
In sum, we find activists operate at different registers simultaneously: from local,
communitarian discourses through to cosmopolitan global claims. They argue from
the local level on behalf of grassroots social movements to the transnational level,
through organizations such as the International Lesbian and Gay Association.40 It is
this seamless movement between the local and the global that best describes human
rights activism around same-sex sexualities today.
II. From National Communities to Supranational Standards
A somewhat different activist strategy unfolded relatively recently in Romania, a
country that has a shocking history of human rights violations, including against
lesbians and gay men, extending from the Ceauescu era (and before) through the
post-Communist period.41 The abuse of human rights was demonstrated by draconian
laws against same-sex sexual acts and, moreover, against same-sex sexual
expression.42 Most infamously, the 1968 Penal Code saw the enactment of articles
200-202.43 Under article 200, sexual relations between persons of the same sex were
38 For a fuller discussion in the South African context, see Mark Gevisser, A Different Fight for
Freedom: A History of South African Lesbian and Gay Organisation from the 1950s to the 1990s in
Mark Gevisser & Edwin Cameron, eds., Defiant Desire: Gay and Lesbian Lives in South Africa (New
York: Routledge, 1995) 14.
39 See LaViolette & Whitworth, supra note 31; Marie-Bndicte Dembour, Human Rights Talk
and Anthropological Ambivalence: The Particular Context of Universal Claims in Olivia Harris, ed.,
Inside and Outside the Law: Anthropological Studies of Authority and Ambiguity (London:
Routledge, 1996) 19.
40 The International Lesbian and Gay Association is an international federation of national and local
groups dedicated to achieving equal rights for lesbians, gay men, bisexuals, and transgendered
people. It was founded in 1978, and now has more than 350 member organizations, representing
approximately 80 countries. See online: ILGA Home
41 This history is documented by Human Rights Watch in Public Scandals: Sexual Orientation and
Criminal Law in Romania, supra note 12.
42 Stychin, Governing Sexuality, supra note 28.
43 See The Penal Code of the Romanian Socialist Republic, trans. by Simone-Marie Vrabiescu
Kleckner (South Hackensack, N.J.: F.B. Rothman, 1976).
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punishable by imprisonment of one to five years. Article 201 declared that acts of
sexual perversion were illegal and subject to the same penalty as prescribed by article
200. Article 202 dealt with the sexual corruption of a minor. Human rights
organizations have produced extensive and appalling documentation on the ways
these laws were enforced during and after the Communist era.44 Although the post-
Ceauescu government repealed the laws prohibiting abortion, it showed no similar
desire to repeal anti-gay criminal laws.45 With time, this intransigence dissipated as it
became increasingly clear that Romanias future lay westward. It also became
apparent that any invitations to join the institutions of the West would come with both
political and economic conditions attached. With respect to homosexuality, this was
true as early as 1993, when rapporteurs from the Council of Europe, visiting
Romania following its application for admission, began raising the issue of the
treatment of homosexuals.46 Shrewd political activists in Romania, who formed a
NGO called ACCEPT,47 managed after many years of social struggle to take
advantage of a European Union accession agenda, in which respect for human rights
has become one of the criteria for entry into the EU. In this regard, ACCEPT had the
active support of Dutch gay groups, and funding from the Dutch state.48 Originally,
funding was obtained from the Embassy of the Netherlands, and subsequently from
the Dutch Ministry of Foreign Affairs, as part of a program designed to strengthen
institutions in the target countries of Central and Eastern Europe through their
twinning with institutions in the Netherlands. The Romanian activists were twinned
with the federation of Dutch associations for the integration of homosexualities
(COC) and this partnership would continue, formally and informally, into the
future. The COC-ACCEPT project funding and expertise were crucial in the setting
up of an organizational infrastructure, the opening of office space, and the developing
of programs and activities.
The arduous character of the Romanian struggle can be explained by the
opposition of many nationalist members of Parliament, as well as a hostile press, and
an Orthodox Church asserting its role in political life. For all of these forces,
resistance to change would be characterized consistently in terms of the protection of
a religious-cultural way of life, against outside influences and conspiracies seeking to
undermine traditional Romanian values.49 These tropes have a long history in
44 Human Rights Watch, supra note 12.
45 In fact, they were vigorously enforced by the post-Ceauescu regime. On the draconian abortion
laws in Ceauescus Romania, see Gail Kligman, The Politics of Duplicity: Controlling Reproduction
in Ceausescus Romania (Berkeley: University of California Press, 1998).
46 See Stychin, Governing Sexuality, supra note 28 at 119.
47 See online: ACCEPT
48 See Stychin, Governing Sexuality, supra note 28 at 120-21.
49 See Tom Gallagher, Nationalism and Romanian Political Culture in the 1990s, in Duncan Light
& David Phinnemore, eds., Post-Communist Romania: Coming to Terms with Transition
(Basingstoke: Palgrave, 2001) 104; Denise Roman, Gendering Eastern Europe: Pre-Feminism,
Prejudice and East-West Dialogues in Post-Communist Romania (2001) 24 Womens Studies Intl
Forum 53.
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Romania and have been consistently deployed in the name of ethnic nationalism. As
well, for the Orthodox Church, the issue of homosexuality provided a means to claim
its authority, which enabled it to draw attention away from its own dubious past
association with the Ceausescu regime. Within this narrative of nation, many
groupsnot only homosexuals, but also Jews, Hungarians, and Romaare
constructed as other to the essence of a Romanian identity. They become
undeserving of human rights because they have been constructed as less than
human.50 The eventual repeal of the anti-gay laws and the enactment of anti-
discrimination law (which includes sexual orientation as an enumerated ground of
non-discrimination) occurred in January 2002.51 ACCEPT executive members will
readily admit that it was pressure from the institutions of the EU, which they fostered
and encouraged, that ultimately led to legal change.52
The turn to the institutions of the European Union, which have also placed
pressure on the Romanian state regarding the human rights of the Roma,
institutionalized children, and other minorities, becomes part of a reimagining of
identity focused on a highly constructed notion of Europeanness, in which respect
for human rights becomes a condition of, and an inherent aspect of, what it means to
be European.53 Quite obviously, the boundaries of Europe are currently up for grabs in
the circumstances of EU expansion. In this reading, Europe is emblematic of
civilization itself because of its respect for human rights. Outside of the fortress of
Europe, by contrast, one enters the non-rights respecting, uncivilized other. That
other desires entry into civilization, which, of course, is currently subject to EU
immigration control that seeks to protect European civilization from the barbarians at
the gates.54
The acceptance of European values has been explicitly described by EU
politicians as a precondition for entry into the Union, and this was strategically highly
useful for gay activists in Romania, as anti-gay laws become perceived as
incompatible with those values. For example, in a letter from eight members of the
European Parliament, Prime Minister Nastase was told that [w]e look forward to
welcoming Romania into the European Union, but an essential prerequisite is that we
must share the same values. Discrimination on whatever ground may never be
50 See generally Tom Gallagher, Romania After Ceausescu: The Politics of Intolerance (Edinburgh:
Edinburgh University Press, 1995).
51 Law for the adoption of Government Emergency Ordinance No. 89/2001, published in Romanias
Official Gazette, Part I no. 65/30.01.2002.
52 Interview of A. Coman, former Executive Director, ACCEPT, in Sinaea, Romania (7 August
2001) [Coman Interview].
53 Armin von Bogdandy, The European Union as a Human Rights Organization?: Human Rights
and the Core of the European Union (2000) 37 C.M.L. Rev. 1307.
54 See e.g. Peter Fitzpatrick, ed., Nationalism, Racism and the Rule of Law (Aldershot: Dartmouth,
1995); Kum-Kum Bhavnani, Towards a Multicultural Europe?: Race, Nation and Identity in 1992
and Beyond (1993) 45 Feminist Rev. 30.
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2004]
permitted.55 In this way, European institutions have a civilizing and disciplinary
function, but human rights are only a small part of that role. The imposition of neo-
liberal economic policies as a condition for EU accession is of far more interest and
importance to the EU, and to the West more generally. This is apparent also in the
relationship between Romania and the International Monetary Fund and the World
Bank, throughout the post-Communist period. Conditions for financial support have
included privatization and industrial restructuring; the creation of a climate conducive
to foreign investment; the elimination of government price controls and industrial
subsidies; and the liberalization of the foreign exchange market.56
While the Romanian state agreed to repeal its anti-gay lawsas with the neo-
liberal agenda, what choice did it really have?this was only after some years of
resistance on the basis that this was an internal, domestic matter. The irony was not
lost on many observers of this struggle that the civilizing club of Europe itself has a
far from illustrious history of human rights protection on this, or many other, grounds.
After all, the idea of European values has a chilling historical pedigree. That is, the
imagining of Europe is often on the basis of a highly selective memory. In this way,
human rights can become a marker of the civilized European and globalized order
and, as Peter Fitzpatrick has compellingly argued, as human rights become the self-
constituting mark of the global, this is simultaneously a mark of differentiation, a
mark of exclusion and marginalization.57 The other to European civilization
continues to be produced, as it has been throughout the history of European
civilization (which could then justify the imperialist mission). Within the Romanian,
and more widely, the Eastern European context, this is all too apparent. The EU and
its human rights law are exalted as epitomes of the universal and progressive in
opposition to the particular and reactionary realms of the nation.58 The post-
Communist nation states of the region become, from the perspective of the EU,
undisciplined, reactionary, non-rights respecting, particularistic, and uncivilized
nations that require the discipline of the EU to transcend their particularity and
approach the universal, rights respecting dimension of nationhood. In this way, the
EU becomes the civilized version of nationhood, while simultaneously transcending
the idea of nationhood. Human rights discourse, as Fitzpatrick has shown, is deeply
implicated in these discourses of nationhood, civilization, and savagery, and there is
some considerable evidence for Fitzpatricks thesis in the context of EU accession in
Eastern Europe.59
55 Letter from eight Members of the European Parliament to Romanian Prime Minister Adrian
Nastase (29 May 2001) [unpublished, on file with author].
56 Colin Jones, Rumbles Felt in Romania The Banker 147:856 (June 1997) 41.
57 Fitzpatrick, Grounds of Law, supra note 7 at 200.
58 Ibid. at 136-37.
59 Ibid. at 122.
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III. Human Rights or Special Rights
The EUs self-image as civilizing non-rights respecting others brings me back
to the central problem of human rights as political claims: the tension between the
constitutively universalizing character of human rights discourse (despite its
inevitably socially constructed and historically specific reality), and the validity of
claims to the cultural difference and specificity of communities. Moreover, these
claims to difference can also be framed in the language of rights, which underscores
the political indeterminacy of the discourse of rights more generally.60 Within the
context of the EU, this is apparent in terms of the rights of member states in the face
of EU law, and language such as the margin of appreciation and subsidiarity
underscores the concern for a right of national communities to be different.61 Within
federal systems, the language of states rights has a long history, and certainly was
invoked in Australia during the Tasmanian human rights dispute. Similarly, for the
postcolonial state resisting gay rights claims, one can find resort to a right of the self-
determination of a historically colonized people (group) to resist a westernized and
oppressive language of individual, bourgeois rights.
The particularized right of the nation often proves a remarkably inventive use of
the language of rights in a range of different cultural contexts. In these narratives, we
find the homophobic state fuelling an anti-gay rights discourse by constructing its
self and its (homogenized and essentialized) people as oppressed by the claims of a
privileged elite undeserving of special rights.62 Rights are grounded in the particular
and unique contribution of heterosexuals (and their reproduction) to the common
good. In this way, rights and duties connect, and the promotion of the common good
is located in the heteronormative private sphere of the nuclear family. These narratives
rely upon the defence of a right to a traditional way of life for a people (composed of
heterosexual families) under threat from a variety of privileged sources, which are
selectively invoked depending upon the political context: urban elites; liberal, white
political correctness; individualism; the West; neo-colonial powers; wealthy gay men;
et cetera. Anti-gay discourse here relies upon the right to defend an oppressed,
geographically based community from powerful interests seeking to sweep away
ways of life and belief systems shared by a people that simply wants to be left alone,
with lives uncomplicated by gay rights (and, for that matter, modernity).
60 See Jane K. Cowen, Marie-Bndicte Dembour & Richard A. Wilson, eds., Culture and Rights:
Anthropological Perspectives (Cambridge: Cambridge University Press, 2001).
61 See Larry Cat Backer, Harmonization, Subsidiarity and Cultural Difference: An Essay on the
Dynamics of Opposition Within Federative and International Legal Systems (1997) 4 Tulsa J. Comp.
& Intl L. 185.
62 On special rights discourse, see Didi Herman, The Antigay Agenda: Orthodox Vision and the
Christian Right (Chicago: University of Chicago Press, 1997) at 111-36; Jonathan Goldberg-Hiller,
The Limits to Union: Same-Sex Marriage and the Politics of Civil Rights (Ann Arbor: University of
Michigan Press, 2002).
C.F. STYCHIN SAME-SEX SEXUALITIES AND HUMAN RIGHTS DISCOURSE
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What these rights-grounded discourses underscore is not only the centrality of
rights discourse, but the political manipulability of human rights talk. As Costas
Douzinas has incisively concluded,
965
Human rights as a principle of popular politics express the indeterminacy and
openness of society and politics. They undermine the attempt to police some
social identities and sanction others and their indeterminacy means that the
boundaries of society are always contested and never coincide fully with
whatever crystallisations, power and legal entitlement impose.63
Struggles around sexuality rights neatly demonstrate this very important point.
Human rights claims by gays can trouble the anti-gay communitarian discourse, but
simultaneously, claims by communities of difference, grounded in the language of
human rights, challenge the logic of cosmopolitan claims made in the name of a
universalizing discourse of sexuality rights. Rights discourse may have become the
fate of postmodernity64 and, for that matter, the product of a global consumerist
society, but as a consequence, they are open to all consumers equally, and their
deployment is limited only by the imaginations of those who wish to make claims.
IV. From Rights to Politics
It is tempting to end the story there, to conclude that rights are politically
indeterminate, socially constructed (as are sexuality and nationhood), and open to
both cosmopolitan and communitarian claims. But if that is the conclusion, then we
are leftperhaps particularly because of the language of rightswith a tendency
toward polarization and irreconcilable political demands. Ultimately, though, I expect
gay rights arguments will win the day because of their easy articulation as part of
globalization discourse. They represent the triumph of the global and of modernity
itself. The language of rights cannot, however, apolitically provide resolutions to
these moments. Legal claims have led to results but a turn to law does not mask the
political character of the dispute and its outcome. If anything, it exacerbates both.
In this respect, gay rights disputes demonstrate a wider point made by Richard
Bellamy and Dario Castiglione concerning politics and the state today.65 They suggest
that both cosmopolitan and communitarian pressures are engendered by globalizing
currents, which push the state in opposite directions. Furthermore, they argue that the
cosmopolitanism of rights must be tempered by a communitarian belief in democratic
debate and engagement with political institutions leading to a spirit of compromise
between previously polarized groups. This must be achieved through a politics of
63 Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century
(Oxford: Hart Publishing, 2000) at 375.
64 Ibid. at 1.
65 Richard Bellamy & Dario Castiglione, The Communitarian Ghost in the Cosmopolitan
Machine: Constitutionalism, Democracy and the Reconfiguration of Politics in the New Europe in
Richard Bellamy, ed., Constitutionalism, Democracy and Sovereignty: American and European
Perspectives (Aldershot: Avebury, 1996) 111.
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reciprocity, compromise, and toleration.66 The focus thus turns to political practices
and institutions through which rights can be given meaning. Bellamy and Castiglione
provide, in this way, a more communitarian account of liberalism as a means through
which to embed rights within a network of relationships, and thereby, to provide a
bridge through the cosmopolitan-communitarian divide.67
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In my experience, gay rights activists aspire to engage in precisely this politics of
the wider communities of which they are a part, and to do so explicitly from their
positions as lesbians and gay men (as well as from other politicized identity
positions). Their struggles are for citizenship and belonging to a wider collectivity in
which they can have voice and participate. The difficulty is that anti-gay rights
campaigners so often seek to exclude them from politics except to the extent that
homosexuality is depoliticized and closeted.
This was particularly true in Romania. The struggle over the decriminalization of
same-sex sexual activities clearly was a crucial human rights issue on its own terms.
The law was brutally applied to deny fundamental dignity to individuals. However,
activists also saw this struggle as a precondition to achieving wider political change
towards the creation of something akin to Bellamys68 politics of reciprocity and
compromise.69 The term I use to describe this politics is civility. In interviewing
lesbian and gay Romanians, I found a deep desire for a politics that was based on
reciprocity, compromise, and civility. In this regard, many saw the struggle over
human rights as a means to achieve a more civil society, rather than only the
realization of cosmopolitan, universal rights. Indeed, ACCEPT explicitly sees its role,
now that basic human rights have been achieved, as participation in a dialogue within
civil society and with the state as part of a wider participatory politics.70 In this way,
the politics of rights activism is grounded in a recognition of the wider potential of
human rights beyond the immediate claim itself.
There is considerable irony in my use of the term civility. Critics of human rights
discourse point to the way in which human rights have become the measure of
civilization and that, in turn, is derived only through its opposite: It was created in
the divide between the European family of nations and savages or barbarians who
were beyond the pale of nationhood, speech and history.71 Despite the rhetorical
power of that critical analysis, what struck me in Romaniaa prime example of a
nation state constructed in EU discourse today as lawless, chaotic, and backward
was the yearning for civil society and the belief that human rights were a necessary
step to achieve a politics of civility. The term civility usefully highlights the political
66 See also Richard Bellamy, Liberalism and Pluralism: Towards a Politics of Compromise
(London: Routledge, 1999).
67 Bellamy & Castiglione, supra note 65.
68 Bellamy, supra note 66.
69 Coman Interview, supra note 52.
70 Ibid.
71 Fitzpatrick, Grounds of Law, supra note 7 at 122.
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indeterminacy of human rights. While we can accept and appreciate Fitzpatricks
trenchant critique of human rights discourse in the world today,72 we also need to
recognize the powerful popular imagery of rights and the desire to deploy rights for
transformative effect.
967
From the struggles of human rights organizations mobilized on the ground around
sexuality, we can find operating within activism a response to the theoretical
difficulties in the use of the globalizing cosmopolitanism of rights discourse when it
meets rights claims made by communities of difference. The key may be to see the
deployment of human rights as a calling card to enter into political and civil society;
indeed, a calling card to enter what was constructed as a community of difference (or,
to put it differently, to heterogenize a community). Activist strategies in practice move
between cosmopolitan and communitarian discourses, and this is an important
moment in bridging this divide. It allows for claims, not to abstract cosmopolitan
rights, but to participation as full members of a wider community, and to have specific
grievances emanating from same-sex sexualities recognized and heard as legitimate
citizenship claims made by full members of that community.
Concluding Thoughts
In conclusion, the implications of this analysis are multi-faceted. While we will, I
predict, increasingly see lesbians and gay men achieving human rights victories and
successfully making claims to full citizenship, with these rights to participate within
wider society come responsibilities to engage in struggles for political transformation.
In my view, it is easy for gay politics to become politically conservative in an era of
gay marriage and same-sex partnership benefits. These arguably assimilationist
political moves also lead to the construction of some queers as rights undeserving
the dangerous, and the uncivilizable. It becomes far too tempting for citizen gay to
consume human rights and then withdraw from any kind of progressive politics,
especially when those who have bestowed the rights are also pursuing policies that
are eviscerating the human rights of others on issues from migration to
counterterrorism. In this regard, my claim has always been that law (including the law
of human rights) can operate in an explicitly juridical way through repression and
social control (the enforcement of anti-gay sex laws exemplifies this), but also that
legal discourse can operate in a more subtle, disciplinary mode by encouraging
individuals, in an infinite variety of ways, to conform to how the law constructs
propereven civilizedbehaviour. The way such behaviour is constructed by law is
informed, I would also claim, by a wider neo-liberal economic hegemony that
emphasizes the privatization of responsibility for others and the withdrawal of the
state from many aspects of care. In this way, law acts as a force for the discipline and
normalization of the self. To gain rights in such a political context, and to be satisfied
with them as a final result, thus would be a hollow victory indeed, and would
72 Ibid. at 122.
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undermine the transformative potential (since it is only a potential) of human rights
discourse. In other words, to be included and to be brought within a community does
not by itself transform that community in terms of its ongoing need to construct
boundaries of membership; to construct insiders and outsiders; the rights
deserving and the rest. So too, same-sex sexual communities must themselves
continue to be interrogated for their own exclusions and marginalizations (such as
around race, gender, and social class). For the privileged within communities who are
achieving the most from inclusion (i.e., those who are not disadvantaged along other
vectors of oppression), there are particular responsibilities to fight for those who are
constructed as rights undeserving.
In my view, this is the challenge and the potential of human rights discourse. The
critique of rights is that lesbian and gay human rights struggles have become
disconnected from politics and, moreover, that we have become depoliticized
consumers through the fetishization of rights. But, to the extent that rights may
provide a key that opens the political realm on the basis of full citizenship, the
language of human rights does remain a valuable discourse in todays political tool
box.
