Let’s Talk About Talking About Rights

Rights matter.

The narrative of “human rights” is, arguably, one of the most successful discursive tools ever created. Thousands of organisations exist worldwide with the protection of human rights as their primary goal; elections have been won and lost on candidates’ human rights records; we see the term as synonymous with democratic government.

It has been an incredibly helpful tool for emancipation movements. The LGBT+ rights movement is one of the best examples out there. Impressive strides have been made across the world in furthering the legal, social political statuses of LGBT+ individuals, and the advocacy efforts of individual organisations are becoming ever more fruitful. This is demonstrated in the achievements made in past two year alone:

  • Since 1995, 25 countries have decriminalised homosexuality, meaning that homosexual activity is now legal in a majority (64%) of countries and territories.[1]
  • Same-sex marriage was not legal anywhere in the world in 1995. Now, same-sex couples are free to marry in twenty countries across five continents. [2]
  • Adoption was only available to same-sex couples in one country in 1995 (Canada). Now, legislation permitting same-sex couples to adopt exists in 34 countries or territories.[3]

It is clear that there is much cause for celebration. Yet we know that discrimination against LGBT+ individuals persists in every country around the globe, regardless of their legal status.

The problem, then, is when rights are not sufficiently enforced. Typically this occurs when the legislation passed does not accord with public opinion. In a country where homosexuality is considered contrary to morality, there is unlikely to be a lot of public will to enforce anti-discrimination legislation. When you fail to get the general public on board with progressive changes, rights become hollow gestures which are of little help to anyone.

The treatment of LGBT+ individuals in Peru is an important, and tragic, example of this. Since as early as 1836, consensual same-sex activity has been legal. There are no legal differences in the age of consent, and since 2009 LGBT+ individuals have been allowed to serve openly in the military. They are allowed to change their legal gender, are protected by anti-discrimination laws and are allowed to donate blood. Yet there is a massive discrepancy between legal status, and treatment in practice.

Discrimination against members of the LGBT+ community is rampant in Peru. A 2014 report produced by Peruvian rights groups found that almost half of all interviewees had experienced some form of persecution. Some interviewees reported being subject to serious violence, including sexual violence, on account of their gender identity.[4] This is highlighted by the case of Luis Alberto Rojas Marin, a young Peruvian who was arbitrarily arrested by police officers in 2008. While in detention, he was stripped and raped by three police officers. Luis Alberto was also beaten and verbally abused for his sexual orientation and robbed of his belongings.[5]

The problem in countries such as Peru isn’t that a legal framework for the protection of rights doesn’t exist. Rather, the lack of cultural acceptance has meant that the everyday treatment of individuals hasn’t improved, and there is little will on the part of agents within law enforcement services to implement the change and ensure individual rights are effectively enforced.

In light of this, we must ask ourselves- is the “rights” discourse a helpful one? Overwhelmingly, the focus of LGBT+ rights groups globally has been on legal change: lobbying state and local governments, submitting amicus briefs to constitutional courts, petitions, and so on. This may be helpful in contexts where society is far more tolerant and where the law does not accurately reflect society’s values. But broadly speaking, legal change is not a helpful goal when the kind of oppression faced cannot be remedied by changes to the law.

The typical response to this is that legal changes can catalyze changes in public opinion. It is of enormous symbolic value when governments endorse LGBT+ rights as this is indicative of changing cultural norms that the government, and consequently society, recognises- this is known as the “virtue signaling” effect. But this can be questioned. Just look at the case study of Peru, where homosexual activity has been legal for all of living memory. The pervasiveness of Catholic values and conservative sexual norms has been a far more influential factor in forming people’s attitudes than has the domestic penal code. And look at the trends in US public opinion towards abortion: in the years since Roe v Wade was decided, public opinion has more or less remained the same (see the chart below).

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Rights should never be considered in a vacuum, nor should they be thought of inherently useful. Through reflecting on the nature of the extra-legal barriers to equality faced by the LGBT+ community, we can think of the best way to respond to those challenges. Focusing primarily on legal rights necessarily crowds out room for that kind of reflection and discussion. This discussion must take place. Only then can we make the rights that activists have long fought for tangible and accessible for the people that need them the most.

Claudia Hyde, Staff Writer

Sources:

Featured image photo by Giovanni Dall’Orto, 16 August 2008.

[1] REDRESS, ‘Luis Alberto Rojas Marin v. Peru’ (REDRESS, 2 June 2015) <http://www.redress.org/case-docket/louis-alberto-rojas-marin-v-peru&gt; accessed 20 January 2016

[1] BBC News, ‘Where is it illegal to be gay?’ (BBC News, 10 February 2014) <http://www.bbc.com/news/world-25927595&gt; accessed 20 January 2016

[2] Freedom to Marry, ‘The freedom to marry internationally’ (Freedom to Marry, 26 June 2015) <http://www.freedomtomarry.org/landscape/entry/c/international&gt; accessed 20 January 16

[3] Wikipedia contributors, ‘LGBT adoption’ (Wikipedia,19 January 2016) <https://en.wikipedia.org/w/index.php?title=LGBT_adoption&oldid=700558524&gt; accessed 20 January 2016

[4] Celso Perez, ‘Dispatches: Marching for Equality in Peru’ (Human Rights Watch, 10 April 2015) <https://www.hrw.org/news/2015/04/10/dispatches-marching-equality-peru&gt; accessed 20 January 2016

[5] REDRESS, ‘Luis Alberto Rojas Marin v. Peru’ (REDRESS, 2 June 2015) <http://www.redress.org/case-docket/louis-alberto-rojas-marin-v-peru&gt; accessed 20 January 2016

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