Lesbian, Gay, Bisexual, and Transgender Rights and the Religious Relativism of Human Rights

D. O. Endsjr
Lesbian, gay, bisexual, and transgender (LGBT) rights are human rights. That LGBT people are not mentioned specifically in any international human rights convention does not mean that their fundamental rights are excluded from the protection offered by these conventions. As Eric Heinze argues in the monograph, Sexual Orientation: A Human Right: An Essay on International Human Rights Law, "those rights of sexual orientation which can be called fundamental human rights do not qualitatively differ from extant human rights in general . . . . It is for this reason that we need not 'create' rights of sexual orientation, and then 'add' them to the extant corpus of rights, but rather can derive them from that corpus, as implicit within it, and necessary for its fuller its fuller realization" (Heinze, 1995: 75). Looking at the International Convention on Civil and Political Rights or ICCPR, one finds that there are three articles that are particularly relevant. The first of these is article 17 stating No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. This is not just a question of laissez-faire, as the article also requires the state to see to that "everyone has the right to the protection of the law against such interference or attacks." Another germane article is article 26, maintaining All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground (my emphasis). Although LGBT people have suffered by not being explicitly mentioned in the list that follows as examples of groups which are to be protected against discrimination in the second part of article 26, due to the article's general prohibition of discrimination, one cannot see the examples given as exhaustive. That the article also specifically concludes the list of possible causes of discrimination with "other status" also supports this.

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A similar prohibition against discrimination in general is found in article 2(1). 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind (my emphasis). This is followed by article 2(2) requiring that "[w]here not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps." However, when the human rights were first established, probably none of the parties considered LGBT rights to be included. Behaving in serious ways contrary to culturally established gender roles was at this time generally defined as criminal by most countries. The early decisions in the European Human Rights Commission also supported this. As Robert Wintemute points out in his book, Sexual Orientation and Human Rights: The United States Constitution, the European Convention, and the Canadian Charter, in a series of nine decisions dealing with applications with men being imprisoned for consensual sexual acts with other men "the Commission found all these applications inadmissible as 'manifestly ill-founded'" (Wintemute, 1995: 92). The basic logic of the universal principle of human rights nevertheless meant that such a reading could not endure. This has been demonstrated in a number of cases in both the international and regional human rights systems in the last few years. Although the United Nations' Commission on Human Rights in April 2003 failed to expand its definition of discrimination to include that based on sexual orientation, that this nevertheless is the case within the UN human rights regime has been unequivocally established by the United Nations Human Rights Committee (UNHRC). In the 1992 case Toonen v. Australia, the UNHRC found that the Tasmanian state law prohibiting sexual acts between males was in contradiction of article 17 of the ICCPR protecting the rights to privacy. Importantly, the Committee tied its understanding of discrimination of homosexuals to the general prohibition against sex discrimination: "[T]he reference to 'sex' in Articles [2(1)] and 26 is to be taken as including sexual orientation." In the ruling of Young v. Australia (4 September 2003), the UNHRC found that the economical discrimination of same-sex couples was against article 26, importantly without referring to article 17, simply stating that "as the State party had provided no arguments on how a distinction between same-sex partners, who are excluded from pension benefits under law, and unmarried heterosexual partners, who are granted such benefits, is reasonable and objective, the Committee found a violation of article 26. "1 The unlawful basis of the discrimination was in this case the "sex or sexual orientation" of the victim, thus establishing discrimination on the basis of "sexual orientation" as an independent criteria in relation to article 26.

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The European Court of Human Rights has come with a number of similar rulings. Starting with the case Dudgeon v. the United Kingdom on 22 October 1981, the Court has in a number of rulings considered discrimination of gays and lesbians a general breach of human rights. Whereas in the case Dudgeon v. the United Kingdom, the Court took into account that "in the great majority of the member States of the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied," this aspect of a general European consensus is no longer considered relevant. In the ruling of L. and V. v. Austria and S.L.v. Austria, of 9 January 2003, the court ruled that in connection with national laws which "embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority, these negative attitudes could not of themselves be considered by the Court to amount to sufficient justification for the differential treatment any more than similar negative attitudes towards those of a different race, origin or colour." This is a wholesale rejection of what may be identified as "insufficient evolution of attitudes as a justification for violence and oppression" (Heinze, 1995: 20), which still dominates the judicial system of even most states that consider themselves tolerant towards sexual minorities. Whether one's sexual identity is considered an immutable status or a fundamental choice thus becomes irrelevant. This, moreover, may also be seen as supported by the 1978 Declaration on Race and Racial Prejudice article 1(2) proclaiming that "[a]ll individuals ... have the right to be different, to consider themselves as different and to be regarded as such." The general bearing of these European decisions was also referred to by the US Supreme Court in the case of Lawrence v. Texas (26 June 2003), arguing that to the extent their own 1986 ruling of Bowers v. Hardwick ensuring the state right to uphold and enact laws forbidding homosexual practice "relied on values shared with a wider civilization, the case's reasoning and holding have been rejected by the European Court of Human Rights." The way gays and lesbians, as a social group not specifically mentioned in any of the international conventions, nevertheless are included within the general prohibition against discrimination means that also other social groups like transgenderists and the physical handicapped must be considered to be covered by the same rights. Although no cases involving transgenderists have been deliberated within the UN human rights regime, the European human rights regime has consequently clearly defined transsexuals as protected in a similar way as gays and lesbians. In article l l d of the Recommendation 1117 of the Parliamentary Assembly of the Council of Europe from 1989, discrimination "in the case of irreversible transsexualism" is found to be contrary to the human rights as "all discrimination in the enjoyment of fundamental rights and freedoms is prohibited in accordance with Article 14 of the European Convention on Human Rights." This is nevertheless the result of a develop-

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ment, as there has been a similar development in the Court's rulings as in those related to lesbian and gay rights, where cultural and social prejudices originally deciding the o u t c o m e has gradually been replaced with a general acceptance of transsexual rights. In its 2002 ruling in the case of Goodwin v. the United Kingdom, the E C H R found that the refusal to legally recognize the sex of a post-operative transsexual woman meant that the British government's stance fell "far short of the standards for human dignity in the 21 st Century. ''2 Another human rights article, which also relates to the rights of LGBT people, is article 5(a) in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), a convention ratified by most of the world's countries with certain exceptions like the United States, Iran and the Holy See. 3 Here it is declared that States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women (my emphasis). This is truly relevant, as fighting for the acceptance for leading an existence beyond the "'stereotyped roles for men and women" lies at the very core of the LGBT human rights struggle. As Eric Heinze argues, "It]he injunction of Art. 5(a) cannot be dismissed as an incidental exaggeration of CEDAW's scope or intent as it is already anticipated in Preambular Par. 14 and reiterated both in Arts. 2(f) and 10(c)" (Heinze, 1995: 14n62). This is however a bit more complicated. Whereas preambular particle 14 and article 2(f) only demand the elimination of stereotyped gender roles to the degree it leads to greater equality between men and women and the end of discrimination, article 10(c) requires "[t]he elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education" (my emphasis). Looking at the various religious attitudes towards LGBT rights and human rights, we find that there are three different approaches towards this question. 9 There is the acceptance of LGBT rights as part of a general acceptance of the human rights. 9 There is a general refusal to accept the human rights as in any way relevant. Although this represents an interesting case, looking here at the attitude towards any particular group protected by the human rights does not raise any principal questions. 9 And, finally, there are those religious groups that embrace human rights, while denying that this is applying to LGBT rights. As I have argued previously, most governments also relativize human rights in order to retain various discriminatory measures against LGBT people (Endsjr

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2001). This attitude is however often connected with various religious traditions, either historically or directly. As reported by Amnesty International in 2001: Torture and other cruel, inhuman or degrading treatment are prohibited under international human rights law in all circumstances. But while some governments deny that such torture takes place, others openly justify torture and ill-treatment of LGBT people in the name of morality, religion, or ideology (my emphasis).4 Though most religions have problems with reconciling their own beliefs with the basic principles of human rights, a number of Christian churches stand prominent in what they claim to be an adamant support of human rights, while at the same time working against them. The problem is not primarily the virulent animosity of certain churches against LGBT people. The right of religious freedom leaves any religious community at liberty to deliver whatever hateful message they may choose as long as this is theologically based. It is the embrace of human rights while simultaneously attacking the basic human rights of LGBT people in an attempt to make an effect on society at large that represents the most serious pattern. These churches use their own theological stand in order to redefine a legal term that originally has nothing to do with any religious tradition. This attempt to enforce one's beliefs through the means of civic law, even on people outside one's religious community, goes beyond any right to freedom of religion and, moreover according to ICCPR article 18(2), infringes on the freedom of observance and practice, and consequently the freedom of conscience, of non-believers as "[n]o one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice." If we, for example, turn to the way the World Council of Churches, the umbrella organization representing most churches but the Catholic Church, expresses its support of the human rights in their 1998 Declaration of the Eighth Assembly, we find a number of peculiar statements which very clearly redefine human rights in order to exclude LGBT rights. In the preamble to this Declaration, the exercise of full human rights are connected to how "All human beings are created in the image of God, equal, and infinitely precious in God's sight and ours." In this way people who may be said to distort the way they are created in the image of God, thus, it can be argued, act in a manner that is not protected by the human rights. If one is not created as a LGBT person, living as a LGBT person is no human right the argument goes. Many churches nevertheless claim that one is created as a LGBT person, but insist that the gender and sexual restrictions defined through heterosexual marriage still apply. As the World Council of Churches Declaration preamble argues that "the world has been corrupted by sin, which results in the destruction of human relationships," the way people are allowed to live out their desires, may thus be considered a result of sin.

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How the Declaration in section 3.22 and 3.23 also supports women's rights as human rights, without saying anything about the human right to live independent of traditional gender roles, provides an additional example of how LGBT fights are systematically presented as not included within human fights. One must nevertheless be aware that the World Council of Churches 1998 Declaration does not rule out the individual churches from supporting LGBT rights, but, most importantly, it clearly defines this as an issue not relevant to human rights. The Catholic Church reflects similar ideas. Although through the Holy Sea it has failed to ratify the ICCPR, the church has nevertheless pronounced a general support for human rights, as for example in an address by Pope John Paul II on 3 November 2000 at the occasion of the fiftieth anniversary of the European Convention on Human Rights (another convention that the Holy See has yet to recognize formally). Here the Pope embraced the Convention because it "represented an important moment in the maturing of the sense of the innate dignity of the human person and the awareness of the rights and duties which flow from this." Furthermore he saw this as connected to "the notion of the inviolable dignity of the human person, which implies inalienable rights conferred not by governments or institutions but by the Creator alone, in whose image human beings have been made (cf. Gen 1:26)." The Holy Sea has also ratified the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, none of which, however, treat human fights in connection with gender or general discrimination. According to the Catholic Church, the fights of lesbian, gays, and bisexuals clearly fall beyond the scope of human fights, as their very sexuality is defined as not human: In the official document of the Congregation for the Doctrine of the Faith of 3 June 2003, Considerations Regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons, the Church makes clear that "[s]exual relations are human when and insofar as they express and promote the mutual assistance of the sexes in marriage and are open to the transmission of new life" (my emphasis). This, of course, is not only contrary to the jurisprudence clearly putting this within the basic fight to privacy according to the ICCPR, article 17, but represents a legal attempt to define a group of people as not covered by the human fights by literally dehumanizing them. This again is made the basis for the Catholic Church seeing itself in a position to decide to what degree lesbians, gays, and bisexuals have any fights at all. The Catholic Church as a religious community is in its right to define homosexuality as "evil," as it does in the same document when arguing, "the approval or legalization of evil is something far different from the toleration of evil." The problem arises when the Church makes this the basis for instructing Catholic politicians, for example, to oppose any legal recognition of same sex couples,

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regardless of these couples being Catholic or not. Still in this document of the Congregation for the Doctrine of the Faith, it is stated that "[i]f it is true that all Catholics are obliged to oppose the legal recognition of homosexual unions, Catholic politicians are obliged to do so in a particular way, in keeping with their responsibility as politicians." Here the Church not only clearly trespasses beyond their own rights to religious freedom by trying to enforce their values on people who are not Catholic, but, moreover, finds itself in direct opposition with the United Nations Human Rights Committee, which in the case Young v. Australia clearly stressed that same sex couples indeed have certain rights. Equally problematic is the message of Pope John Paul II for World Communication Day, 24 January 2004: "Without resorting to censorship, it is imperative that public authorities set in place regulatory policies and procedures to ensure that the media do not act against the good of the family," meaning for example giving "positive support" to such issues as "divorce, contraception ... and homosexuality." In spite of the insistence that this is not to mean censorship, the world governments are asked to directly intervene so that either the media limit their reports on people living in ways that are actually protected by the human rights, or are careful not to portray these people in a positive way. The Catholic Church even relativizes the freedom of expression in matters involving people not living according to Catholic dogma on gender and sexuality. From a human rights perspective, the most serious consequence is not the way many churches support the rampant discrimination and attacks against LGBT people. The exclusion of LGBT rights from the greater context of human rights where they rightly belong means a relativism of the very concept of human rights. Once it is accepted that there are certain groups that due to certain religious or cultural prejudices do not qualify to be protected by the human rights, one cannot keep others from excluding the rights of other groups because of bias found in other religions and cultures. That human rights only reflect Western ideas represents a serious criticism against the international human rights regime. Although intimately connected historically with the development of Western ideas, the universal principles established in the Declaration of Human Rights and subsequent conventions, however, cannot be said to reflect only Western ideas. Not only were all five major continents represented in the committee working on the Universal Declaration of Human Rights, the non-binding document which has offered the basis of all later human rights conventions, all independent states, save the Holy See, have in principle given their support to the human rights through the Charter of the United Nations, as one of the purposes of the United Nations, according to article 1(3), is "promoting and encouraging respect for human rights and for fundamental freedoms for all." Even more importantly, the way it has become obvious that the human rights also represent a serious critique of issues that are deeply rooted in Western religious and cultural prejudices dem-

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onstrates the universal core of the human rights. This is where one realizes that LGBT rights, originally considered not to be included within human rights because of these same prejudices, take center stage in the legal understanding of the universal principle of the human rights. Quoting former Malaysian prime minister, Mahathir bin Mohamad, who complained that "it would seem that Asians have no rights to define and practice their own set of values about human rights," Jack Donnelly points out in Universal Human Rights in Theory and Practice that "[t]his is to a considerable extent true, not just for Asians, but for all countries" (Donnelly, 2003: 108). How LGBT rights are inseparable from human rights makes the impotence of cultural relativism against the human rights regime clear also to conservative Western groups, who in no way welcome any acceptance of LGBT people. There is still a long way to go before everybody realizes to what degree LGBT rights are included within human rights. The prejudices are rooted so deeply that the very idea that LGBT rights are indeed connected to human rights is still not even conceivable for the majority in most Western countries, including most politicians. It is to a large degree, a question of ignorance. The persistent religious effort to redefine the understanding of human rights in order to exclude anything related to LGBT rights represents something else and something quite more serious. If these efforts are allowed to succeed, we will realize that the criticism of the human rights as only representing Western values suddenly will be true. According to United Nations Special Rapporteur on Violence against Women, Radhika Coomaraswamy, "the greatest challenge to international rights comes from cultural relativism and religious extremism" (Coomaraswamy, 1999: 79). The case of LGBT rights gives this claim an interesting perspective. In their effort to redefine human rights so that LGBT rights are excluded, most Christian churches insist that their own cultural relativistic perspective has a universal bearing. Extremist or not, this religious effort to reinterpret human rights based in certain religious dogma clearly fails in its universal pretension. Its insistence that historical Western values somehow are above what rights may be derived from the extant human rights corpus nourishes the cultural relativistic opposition on international rights. The religious campaign for a relativistic understanding of the human rights in order to exclude LGBT people is therefore not only something that concerns LGBT people themselves. As rights of a traditionally discriminated group in traditionally Christian societies, LGBT rights consequently stand prominent in the very defense of the universal principle of the human rights. Indeed, the rights of LGBT people represent a touchstone in the Western attitude towards the human rights at large. If human rights are understood in a way that makes it possible to exclude the basic rights of certain groups only because of religious and cultural prejudices traditionally found in the Christian West, we find that the principle of universality is taken right out of the human rights, and

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h u m a n r i g h t s are t r a n s f o r m e d to a set o f rules o n l y r e f l e c t i n g h i s t o r i c a l l y W e s t ern values.

Notes
1. 2. 3. 4. "Human Rights Committee Rules on Complaints of Violations from Individuals", United Nations Press Release September 4, 2003. According to BBC News July 11, 2002. See ''Transsexual wins right to marry" at news.bbc.co.uk/ hi/english/uk/newsid_2122000/2122094.stm. With the ratification of San Marino on December 10, 2003, the number of states being party to the CEDAW is 175. Amnesty International Report "Torture and ill-treatment based on sexual identity" (ACT 40/016/ 2001). See also Donnelly 2003:230-31.

References
Amnesty International Report. 2001. "Torture and ill-treatmentbased on sexual identity," (ACT 40/016/ 2001). Congregation for the Doctrine of the Faith. 2003. "Considerations Regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons," 3 June. Coomaraswamy, Radhika. 1999. "Different but Free: Cultural Relativism and Women's Rights as Human Rights" in Courtney W. Howland (ed.) Religious Fundamentalisms and the Human Rights of Women. New York & Houndmills: Palgrave 2001:79-90. Donnelly, Jack 2003. Universal Human Rights in Theory and Practice: Second Edition: Ithaca & London: Cornell University Press. Eighth Assembly of the World Council of Churches. 1998. "Declaration of the Eighth Assembly of the World Council of Churches on the Fiftieth Anniversary of the Adoption of the Universal Declaration of Human Rights," 14 December Endsj0, D.O. 2001. "I kjonnets grenseland. Vestens relative menneskerettighetsbegrep" in Mennesker og rettigheter. Nordic Journal for Human Rights 4: 81-90. Heinze, Eric 1995. Sexual Orientation: A Human Right: An Essay on International Human Rights Law. Dordrecht, Boston & London: Martinus Nijhoff. Pope John Paul II. 2000. "Address of John Paul II on the Occasion of the Commemoration of the Fiftieth Anniversary of the European Convention on Human Rights," Friday, 3 November. Pope John Paul II. 2004. "Message of the Holy Father John Paul II for the 38th World Communications Day: The Media and the Family: A Risk and a Richness," 24 January. Wintemute, Robert 1995. Sexual Orientation and Human Rights: The United States Constitution, the European Convention, and the Canadian Charter. Oxford: Clarendon Press.