Constructive International Approaches to Tackling Violence, Criminalization and Discrimination Based on Sexual Orientation and Gender Identity

André de Plessis, International Lesbian and Gay Association (ILGA), at the conference “When Identity Becomes a Crime: The Criminalization of Homosexuality Globally” in the Capitoline Museum (Rome, Italy) on 11 October 2014

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Introduction

On Sunday last week, at the opening Mass of the Family Synod, Pope Francis highlighted that the synod of bishops are called to work for the Lord’s vineyard to help realise his dream, his loving plan for his people. It’s not about discussing beautiful and clever ideas, or seeing who is more intelligent, but it’s about how to better nurture and tend the Lord’s vineyard.

I am honoured to be here today and share with you, and I wish to do so in that same spirit. Not to discuss clever or even beautiful ideas, but about what can be done by us all, working together in the vineyard of the world. And as I do so, I am here to talk about the people in this world: everyday people from every corner of this planet, every part of society, including the poorest and most marginalized. Human beings created in the image of god and born free and equal in dignity and rights who have every right to be cared for by those who tend the vineyard.

Criminalization

In around 80 countries around the world, people face the risk of imprisonment or death because of laws criminalizing love between two people simply because those people happen to be of the same sex. And in every country—not in just those 80 or so—people face violence and often horrendous discrimination just for who they are or for who they love.

Criminalization matters. In several countries this is through direct enforcement. Men and women are arrested and imprisoned in clear violation of international human rights law. Some are even executed. These are affronts to human dignity and rights in and of themselves.

But criminalization also matters in those places where we are told that nobody has been arrested for years, if ever, where the law simply “remains on the books”. In those places, gay men, lesbians, trans people and bisexuals often face life as second class citizens, fearful of asking for police help if they get attacked because the police will say “you deserved it”, living in exclusion hiding their private lives because of what “the public” or “their families” will say. Decriminalization gives these people the chance to live in dignity and allows other people in society to start accepting them on their own terms, rather than themselves thinking they are embracing a criminal.

I will talk today about how the Holy See approaches the topics of sexual orientation and gender identity at the United Nations at which it is an observer and where I see it working and hear what it says. As mentioned just now, LGBT issues are not a discussion topic. They are actual people, and so I will want to continually get back to how this affects the lives of such people. Before I get to the UN part, a few clarifications on scope.

Scope

I want to be clear immediately what I will talk about today and what I will not talk about today. First, what I am here to talk about. I am here to talk about action that can be taken to prevent violence being carried out against people who are transgender, bisexual, lesbian or gay. I am also here to talk about how we need to stand-up against those laws that continue to criminalize love between two people just because they happen to be of the same sex. And I am also here to talk about the worst forms of discrimination against such people: discrimination that prevents people from having access to health, education, housing and other basics of human dignity. Violence, criminalization and discrimination.

And now for what I am not going to talk about. I am not talking about same-sex marriage. That is a completely different topic and one on which many others are far more qualified to talk. I am not, of course, denying that there is same-sex marriage in many countries around the world, including in my own country of South Africa. Nor am I denying that same-sex marriage is often in people’s minds when they first think about matters relating to sexual orientation and gender identity. The discussions are, sadly, often conflated. As we know same sex marriage is a relatively recent development with countries going through often-heated discussions on the matter, engaging in healthy public debate and changes in the law reached through legal and democratic processes. Sometimes that brings about the introduction of same-sex marriage, in other cases it does not. And of course the vast majority of places around the world remain jurisdictions where same sex marriage is not performed or recognized. And to be absolutely clear, even international human rights law is clear: States are not required to allow same-sex couples to marry (though they are of course free to do so).

So going back to what I will talk about, I hope this is something that we can all agree upon: that criminalization of homosexuality and violence and discriminations against LGBT persons is never, never, never justified. In fact I will go further. I believe that we not only can agree on this, but we desperately need to show the unanimity on this, and take concerted action.

The Holy See at the UN

Turning to my area of experience: the United Nations, and how the Holy See approaches this there. It’s approach is, on one level, admirable. The Holy See has generally opposed violence and unjust discrimination against homosexuals as well as criminalization and has repeatedly spoken out against this abuse at the UN General Assembly and at side events. For example in a statement to the General Assembly in 2008 it said: “The Holy See continues to advocate that every sign of unjust discrimination towards homosexual persons should be avoided and urges States to do away with criminal penalties against them”.

In 2012, the Holy See was also able to respond to the first UN report prepared by then Madame High Commissioner Navi Pillay on acts of violence and discrimination against LGBT persons. The Holy See said: “[The Report cites] numerous and lamentable ways in which the dignity and human rights of persons have been transgressed because of their perceived sexual differences. These represent tragic incidents of how some human beings are treated by other members of the human family in a most inhumane manner […] All such behavior, whether fomented between individuals, by social and cultural groups, or by the State itself, should be proscribed and sanctioned since it is not in conformity with the principle of universality enshrined in the Universal Declaration of Human Rights that ‘all human beings are born free and equal in dignity and rights.’”

To have such statements is of course a positive thing. Not just moving but also powerful. The Holy See is incredibly influential in the international arena. When it speaks, others listen. These words speak to a church that recognizes the inherent value and dignity of each human being and is prepared to stand-up for such individuals. In fact, if both statements had stopped right there and been followed-through on, there would be little to talk about today.

However, these two statements did not stop there. They went on: “The Holy See wishes to raise serious concern with the insertion of terms such as ‘sexual orientation’ and ‘gender identity’ which do not enjoy mention in binding documents of the United Nations and which are ambiguous in nature since they lack specific definition in international Human Rights instruments.” In another place it says: “These words (sexual orientation and gender identity) would create serious uncertainty in the law as well as undermine the ability of States to enter into and enforce new and existing human rights conventions and standards.”

This may not sound like such a problem at first. However, what the Holy See has endorsed here is the shutting down of any real focused discussion at the United Nations, joining a group of other states—led by Egypt, Pakistan and Russia–in doing so. It argues this through walking a fine-line of first recognizing that homosexual persons do exist, but then expressing concern about the use of the very words that describe these people. How can we target violence against a group without being able to talk about them? People face such violence, discrimination and criminalization based on their perceived sexual orientation and gender identity. There needs to be discussion exactly on that. Imagine an international document talking about violence against people because of their race, but no mention could be made of race. Or a discussion on discrimination against persons with disabilities that did not allow discussion of “disability”.

These may sound like small semantic issues—clever or beautiful ideas even—but they are not. Not supporting the attention that needs to be given to these issues invisibilizes the people who are lesbian, who are gay, who are bisexual or who are trans.

The Holy See could rather be using its incredible influence in international spaces as a compassionate and dynamic force for positive change in the world by contributing to a constructive dialogue. That could go a long way to help curb violence, criminalization and discrimination against LGBTI persons.

However, there are numerous other occasions where the Holy See has used its privileged position of statehood to oppose measures in international institutions intended to support the rights of LGBT people; for example, at the United Nations, opposing inclusion of sexual orientation and gender identity in the 2010 resolution on extrajudicial, summary and arbitrary executions; or, at the OSCE, repeatedly between 2005 and 2010 opposing work on hate crimes based on sexual orientation or gender identity; or at the Council of Europe, opposing the inclusion of wording intended to ensure that the Violence against Women Convention protects lesbian, bisexual and transgender women from violence motivated by their sexual orientation or gender identity.

As I said at the beginning, I want to link this back to real people on the ground. When the Holy See speaks at the UN, other States take note. The message is picked-up and often replicated. Consequently, the opportunities to discuss human sexuality and have the root causes of violence and discrimination addressed at the local level are also affected in adverse ways. Statements by the Holy See at the UN reverberate in pulpits and podiums in countries around the world.

Concluding Recommendations

I believe the message is clear: what the church says matters. It matters in Rome, it matters in New York and Geneva, and it matters in Buenos Aires, in Kampala and in Kolkata. It can add to the climate of hate and fear, or it can offer a message and gospel of love, safety and inclusion.

So what can the Holy See do?

• It can increase the volume with which it publicly condemns violence against people in sexual and gender minorities.
• It can call for the decriminalization of consensual, sexual relationships and support the repeal of other unjust criminal penalties for people in sexual and gender minorities.
• It can emphasize the church’s opposition to the death penalty in all circumstances.
• It can moderate the tone of the Church’s public discourse on sexuality, including affirming and embracing a space for discussion of questions related to sexual orientation and gender identity.
• It can call for greater legal protections for people in sexual and gender minorities.
• And it can engage in real and sustained dialogue with those who are affected as it decides how to act, rather than simply after decisions are made.

In conclusion, I am reminded again of His Holiness’ homily: it is not about discussing beautiful and clever ideas, or seeing who is more intelligent, but it’s about how to better nurture and tend the Lord’s vineyard. We are looking to that moment, coming soon we believe, when the Holy See will, in love and compassion, focus on the dignity and rights of all human beings.

Thank you.