Rant about the Pot of Gold at the End of the Rainbow

I keep coming back to this topic of LGBT* rights.  Maybe somebody will think “move on already”, but I am not apologising, since I think it is THE human rights question of our time.  There are other live issues in Europe, such as the rights of the Roma and immigrants, but that is more a question of recognising and giving effect to rights that exist on the legal level.  The rights of LGBT persons do not even yet exist in law in many countries.

There really seems to be a clear split in where the world is going, as I witnessed in Namibia.  Western countries (including much of South America) are slowly but surely moving towards recognition of equal rights.  Some need a bit of nudging, like Russia, which is trying to jump off the human rights bandwagon and climb aboard the homophobia train, but it will struggle.  There is very little doubt that the European Court of Human Rights will give them the slap they amply deserve for their “homosexual propaganda” law.  That is the price to pay for wanting to be part of European society, Mr Putin.

Some other countries, mostly those in Africa (South Africa excluded), or where the majority religion is Islam, are racing in the opposite direction.  They are tightening laws and, arguably more importantly law enforcement, against sexual minorities.  The discrimination is very real.  It is absolutely PC to spout homophobic crap in Namibia, usually coupled with thundering religious judgment.  The part about Jesus being on the side of the outcast and persecuted appears to be forgotten in the righteousness of the family being about multiplying and filling the earth.  We even had a few colleagues, working for a HUMAN RIGHTS ORGANISATION, who did not support equal rights for gays.  I mean, where do you begin in such circumstances?

I kept asking myself why this is.  There appear to be a few reasons.  The publisher of the Namibian, the country’s main newspaper, thought it was diversion.  Politicians always thought it was a good time to make homophobic statements whenever the heat was on the government for some alleged misdeed or other: “Look over there, a moffie, let’s all go and beat him up!”  You can also see why this would apply in places like Zimbabwe.  Very practical example of the technique satirized in the movie Wag the Dog.

The second reason appears to be relentless, and successful, hate campaigning by a few nutjob American preachers.  There is currently a case ongoing in Massachusetts against a certain Scott Lively brought by Sexual Minorities Uganda, and the facts in the Court’s Order permitting the claim to proceed make for pretty chilling reading.  Scott Lively is very proud of how he has managed to convince prominent Ugandans, including Parliamentarians, that homosexuals are behind just about all evil in the world and it is important that they be contained, if not exterminated.  He is the author of a historical book on the subject called Pink Swastika.  Go on, google it (I refuse to provide a direct link) and you will be amused and horrified in equal measures.  You will also see why Mr Lively well deserves the title of a “nutjob”.

This is perhaps the saddest part of the story.  Homosexuality is not the western import that evil tyrants like Robert Mugabe claim it to be, homophobia is.  It is not that countries like Namibia were previously totally accepting of homosexuality.  They just didn’t really care.  There was a lack of information on the part of both, the LGBT persons themselves, as well as the general public, about what it means to be “homosexual”, “bisexual” or “transgender”.  Nowadays LGBT persons are more self-aware, and consequently clamour for recognition of their right to be who they are more openly.  This in part, and the Scott Livelys of this world in part, lead to homosexuality being more understood, but not well enough understood to be accepted.  It is the classic case of the fear of the unknown, but peppered with a heavy dose of malicious misinformation.

So the fight is very important.  I must admit that F and I were quite disheartened at times in Namibia; we even ended up writing a newspaper op-ed to correct a blatant untruth stated publicly by a high-ranking public official in terms of what the law said about the rights of a certain group of sexual minorities (asylum seekers). 

Then we went to a sexual minorities party and it came at just the right time.  The atmosphere was fabulous, the music was great and the crowd was a true rainbow.  There was everyone from a glamorous drag queen via a butch lesbian to a couple of boring white heterosexuals whose movements you could barely call “dancing”.**  Everyone was accepted for who they were, nobody was aggressive or judgmental and the point was just to have a good time.  We had some drinks, we boogied and we met a few nice people.  What more could you ask from a party?  It was so amazing to see how these people, who face intolerance every day of their lives, were themselves so accepting and tolerant.  F said afterwards that it made him believe in our LGBT project again, as these were people whose rights were worth fighting for.  I think human rights belong to everyone, not just nice people, so I can’t subscribe to that statement, but I couldn’t help being uplifted by the very inspirational bunch of people.  There was definitely a pot of gold for me at the end of that rainbow party.

So I will keep ranting until the human rights of sexual and gender minorities are given full recognition, in Finland, Namibia and elsewhere.

You have been warned.

*I have recently discovered that LGBT is not quite the widely known acronym, like the UN, HIV or CIA, I assumed it to be.  Thus for the sake of clarity: LGBT stands for Lesbian, Gay, Bisexual and Transgender (or Transsexual).  Sometimes you will see it also as LGBTI (“I” for Intersex) or LGBTIQ (“Q” for Queer).

**Us.

Rant about Sodomy and the British Empire

One of our projects at the Legal Assistance Centre concerns LGBT rights in Namibia.  The struggle is all uphill as not only is sexual orientation unfortunately not an express ground on the basis of which discrimination is prohibited under the Namibian Constitution, but the common law actually prohibits “sodomy”, which is the code word for criminalising (male) homosexuality.  It is a dead letter in the law that has not been enforced in years, but there it stands, nonetheless.

 

Namibia is a young country that has been trying to get the critical laws passed for the society to function and provide for the citizens.  So where did it find the time to legislate against homosexuality?  

 

Well, turns out it didn’t need to find the time.

 

When I was beginning my legal studies in England back in 1998, I learnt in my criminal law course that “sodomy”, as well as “gross indecency” (code for non-penetrative sexual acts between men), were still crimes in England.  The exception was that if only two men, who were both over 21, were involved and it all happened in private, then it was ok.  In 2000 the age of consent was lowered to match that for heteros, but group gay sex in a public toilet remains illegal to this day.  Famous British men have been convicted for homosexuality in trials that can only be described as political, e.g. the playwright Oscar Wilde in 1895 and physicist (and genius) Alan Turing as late as 1952.*  Shame on the nation.

 

However, even bigger shame on the nation that this insidious and hateful law was one of the most lasting exports from the motherland to the rest of the British Empire.  Have you noticed the fact that the current wave of public homophobia has inflicted hardly any countries in Francophone Africa,** but only former British colonies?  Well this is in large part why.  The Napoleonic Code did not criminalise homosexuality.  When the newly independent West African countries began replacing and complementing that with their own laws, they had more important fish to fry than regulate what consenting adults could or could not do in their bedrooms.

 

Not so in former British colonies.  These laws were exported to other parts of the world with the view of bringing European Christian morality to the indigenous populations.***  As a result, rather than having to make the effort to legislate against homosexuality, former British colonies should actually have taken positive steps to DE-criminalise it upon independence.  Again, they presumably had more important questions on their plates.  So here we are, in a situation where half of the just under 80 countries that still criminalise homosexuality do so on the basis of British colonial legislation (which has in some countries been updated and amended, but still).

 

Namibia inherited British legislation in a roundabout way.  South Africa became a British colony in 1806, but it retained the Roman-Dutch common law, which criminalised homosexuality.  Three years later the Dutch (and their colonies) abolished the law, but the British rulers of South Africa were keen to keep it, and so it also became part of the laws of Namibia when the country, known as “South-West Africa” back then, became South Africa’s mandate after World War I.  Pre-independence laws were retained upon independence, as the country couldn’t exactly start from zero as far as legislation was concerned.  So there it still is, the crime of “sodomy”.  

 

I ranted a few weeks ago that I though it commendable that Namibians appeared in general less bitter towards their former colonial oppressors and more forward-looking than Kenyans.  Well the exception is the gay community.  The Brits have a lot to answer for to the Kenyan as well as the Namibian sexual minorities for making their lives more difficult and providing the breeding ground for the current wave of homophobia that is sweeping across parts of Africa.

 

 

(The key facts in this rant come from two excellent reports on the subject of homosexuality and the British empire, a short and engaging one by Michael Kirby which can be found here, and a comprehensive one by the Human Rights Watch available here.)

 

*This can be compared with the 5-year jail term handed down in Malaysia in March this year to opposition politician Anwar Ibrahim for sodomy, after his party gave its best performance in the polls in the December 2013 elections.

**Or in former Belgian, Portuguese, Spanish, Dutch or German colonies for that matter.

*** Robert Mugabe and other nutjobs appear to fail to see the irony when they rant against homosexuality as “un-African”, or a “white man’s disease”, thus defending the colonial laws.

Rant about Gays, Kids and Consumer Boycotts

The bill attempting to amend the Marriage Act to make the institution gender neutral is meandering its way through the Finnish Parliament.  To kick off the debate, Green MP Oras Tynkkynen stated that “[t]he law on equal marriage diminishes nobody’s rights.  It costs nothing.  There are only winners.”

This did not convince the diehard opponents, who have continued to repeat their arguments which can at times only be described as cringe-worthy.  It is hard for a casual liberal to be anything but baffled by these.  Why is it that two people who love each other getting hitched is somehow seen as a threat to somebody else?  How can gay marriage threaten hetero marriage?

Mr Tynkkynen’s argument, which we liberals find so compelling, comes from a strongly individualistic viewpoint.  My marriage is my business, what I do in the bedroom is my business, as is what I cook in the kitchen or wear to decorate and warm my body.  But this is not the only view or even the best view in all respects.  Many individual life choices can have an impact on the environment, on our friends, on our neighbours.  In the case of gay marriage the argument against says that the collateral damage is suffered by kids. 

The fact that research shows this argument to be rubbish and gays being no worse parents than straight people is not, however, decisive for us liberals.  Would I change my view on gay marriage if the argument was accurate?  If straight folk really were the better parents?  I would not.

So maybe this is about something else.  Maybe it is about means – about the role of laws and regulation.  Maybe us liberals, while taking a moral stance about issues ourselves, are inherently uncomfortable with the state legislating about them, about behaviour not being directed by the better argument and market forces but by simply prohibiting it?  I do not want to intervene in other people’s choices by way of actual bans, but I do engage in discussion with people around me.  This is mostly to exchange ideas, but I cannot deny an underlying motive at times to make them change their attitudes or behaviour.  I also wish the markets would take a more social or environmental role in directing conduct (see my rant about airplanes on 24 April 2013).  Combining the two, I believe in consumer boycotts, which is why I was at home and not in Sochi earlier this month. 

However… I do not think this is it either, as it does not fit with the political breakdown of who is for and who is against:  The prime example is found in the United States where the Republicans, who are traditionally all about individual freedoms and small government, are against the legalisation of gay marriage.

Having turned this thing round in my head a million times and tried to understand the arguments that to me look so obviously nonsensical, but which are still made by smart people not only with a straight face but with fervour, I had to concede that the argument is not going to be won by being rational. 

This brought back memories of a talk I had the privilege of attending back in 2009 when my legal hero Albie Sachs* was touring to promote his book The Strange Alchemy of Life and Law.  When sitting as a judge on the South African Constitutional Court, Justice Sachs penned the court’s landmark decision in the 2005 Fourie case** ruling that defining marriage as a union between a man and a woman is unconstitutional.  What was interesting was not just that the Court found the law to be unconstitutional, but that instead of judicially changing it, the Court ordered the Parliament to fix it within a year and thus forced the nation to have the difficult debate on the subject.  During his 2009 talk Mr Sachs explained why this was important: the Court was the court of all South Africans, not just the liberals.  While it was clear that fundamental rights could not be denied to one part of the population, this had to be done in a way that respected also the views of conservative South Africans, who were often vehemently against the idea.

How can we do the same thing?  How can we ensure that the discussion on gay marriage remains civil?  That we respect those irrational feelings and the people holding them without permitting them to stall the granting of equal rights to all?  Justice Sachs, I know your humane wisdom is needed in many parts of Africa (like in Uganda, Gambia or Nigeria) right now, but Finland could also use it.  Please help.

 

*This is not a joke, there are such things as legal heroes.  If you are not familiar with the biography of the admirable Mr Sachs, check it out and be convinced.

**Minister of Home Affairs and another v Fourie and another; Lesbian and Gay Equality Project and others v Minister of Home Affairs and others, [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005).

Rant about Perversions

The United States Supreme Court has struck down the Defense of Marriage Act (DOMA) and California’s Proposition 8, in two welcome boosts for the equal rights of homosexuals.  Hooray, champagne bottle corks poppin!  While some of us still have to hang our national heads in shame (hello there, fellow Finns, as well as my Swiss and German friends) as being more backward than we would like to think ourselves when it comes to marriage equality, I prefer being forward looking.  It is just a matter of time, at least as far as Finland is concerned.  Probably also for Switzerland, although we know from experience that the “time” might just be a few decades longer than in surrounding Europe.*

Since gay rights are, or will be, pretty much in the bag, I want to look at the future, and what are the next battlefields in the sphere of sexual equality.  I will again be guided by the United States Supreme Court, and draw my inspiration from the great liberal thinker that is Justice Antonin Scalia** who stated in his dissenting opinion in Lawrence v. Texas 123 S.Ct. 2472 (2003), a case that found the criminalisation of homosexuality to be unconstitutional, that anti-gay laws were like legal bans on “bigamy, ... adult incest, prostitution, masturbation, adultery, fornication [and] bestiality”.

I had to study the judgment as part of my comparative human rights course at university and our excellent, provocative professor paused on this passage and asked us whether Scalia had a point:  Was homosexuality really that different from bigamy, adult incest or bestiality?

I loved the exercise, and put my natural distaste for issues such as incest aside to ask myself the genuine question: What sexual behaviour can be regulated by the state, and what should be left for the bedroom?  I don’t think the issue should be determined on the basis of our personal feelings about the sexual practice itself, but on some principled ground. 

For me, I decided that the principled ground is this:  As long as the practice involves consenting adults, it is not for the state to concern itself with it.  And when it comes to corollaries of sexual behaviour, such as the institution of marriage, the state should really provide the same rights to everybody, as long as the practice itself is permitted.

Applying this principle to the list, I find that the line is drawn at bestiality.  Animals are not capable of consenting to sex with humans in any meaningful way, so sex with animals, like sex with children, can be illegal.  But bigamy, adult incest, prostitution, “fornication” (ie sex outside marriage) and adultery are all OK.  (I won’t stoop to even comment on masturbation). 

You may initially be shocked, as I was.  For example, the idea of sex with a close relative is repulsive to most of us.  But it might not be to everyone, and frankly, if someone wants to have sex with their father or sister, it is none of our business.  Many have heard about the case of Patrick Stuebing and Susan Karolewski, a perfect example of where the anti-incest laws led to a real injustice.

Similarly, why would we restrict the right to marry to just two people?  What is the justification to deny bigamy, or polygamy in general, between consenting adults?  None, except that we are instinctively drawn to the purity of the biblical idea of a monogamous heterosexual marriage as the “proper” state of affairs.  We might also look at some cultural practises and fear that polygamy will lead to abuse, unhealthy relationships and misery.  Well, many monogamous heterosexual relationships lead to such things and we don’t deny the institution as a result.  As polyamorous people are becoming more open about their lifestyle choice (see e.g. here or here for info), I’m predicting that polygamy is the next issue on the sexual equality agenda, and you know now whose banner I will be marching under.

*Fun fact:  Appenzell was the last Swiss Canton to admit women’s suffrage (=right to vote) in 1990, and only because the Federal Supreme Court (Tribunal Fédéral) forced them to.

** That was sarcasm.  Scalia is an arch-conservative douchebag.

Rant about the Last Closet

I would like to think of myself as someone reasonably attuned to unintended insults*, but somehow with hockey all of that was out the window.  Hockey natter is replete with homophobic “jokes” and casual sexism.  Yet I for a long time didn’t see them as such.  I would go along with it, making idiotic (and not even mildly funny) comments to members of the guys’ team about picking up the soap in the shower.  Or call someone failing a shot a “girl”.  Or ... the examples are simply too numerous to list.

I hang my head in shame.

But at least I’m in illustrious company!  The examples in this regard are also too numerous to list, but I’ll give just a few for tasters: A college basketball coach whose usual practice techniques included physically abusing players and calling them faggots and a professional baseball player writing a homophobic slur on his eye-black strips during a game.

When the atmosphere in professional team sports is what it is, it is no wonder that no athlete in such sports has come out as gay, like, ever.  In football (or soccer in American) one player came out decades ago and then committed suicide, and another one did so this year, but felt the need to end his career at only 25 years old as a result.  Football is not even the most macho of sports, so one can imagine how much worse it must be in basketball, rugby, baseball, American football and hockey of course.

Considering that the stereotypical gay guy is pretty athletic, how likely is it that there really never have been any gays playing any of these sports professionally?  Extremely unlikely.  But as long as idiots like me are making the atmosphere totally hostile for them, no wonder that they prefer to stay in the closet.  Many have probably also chosen not to pursue a career in the sport they love and excel at.

Enter my hero of the week, Baltimore Ravens linebacker and Superbowl winner Brendon Ayanbadejo.  Mr Ayanbadejo wrote a superb op-ed piece for USA Today shortly after the Superbowl, using the media attention to raise awareness about homophobia in professional team sports.  He said poignantly that “the sports world – my world – is the last closet in America” and encouraged athletes to be the rolemodels they could and should be and create a safe environment for gays in sport.  He likened our times to 1942 when Jackie Robinson broke the colour line and became the first black player in Major League Baseball.  We are still waiting for the “gay Jackie Robinson” in men’s professional team sports, according to Mr Ayanbadejo, but hopefully not for long.

So momentum is starting slowly to build.  Mr Ayanbadejo is a member of Athlete Ally, an organisation supporting gays in sport, and I was pleased to see Sean Avery, a former NHL goon, also on the Board of Directors.  In Europe, the professional football player Matt Jarvis has just become the third of his kind to pose for the gay magazine Attitude (after Freddie Ljungberg and the trailblazer (already in 2002) David Beckham) and Olivier Giroud did the same for Têtu last year.

Apart from creating a more positive attitude in general, and via publicity, there is something to be done at the grassroots level as well.  Just like in the armed forces, there appears to be an entirely mistaken fear in some sports circles that gays on a team would somehow threaten team cohesion or create awkward situations in the changing room.  Professional male athletes will find it hard to be told that they could learn something from their female counterparts, but this is one area where they really could.  Lesbians are obviously not an uncommon sight on the field, pitch or ice in women’s team sports and I can assure all boys on the basis of years of personal experience, that it is not a problem AT ALL.

*I try to mean them when I make them...