Governments’ obligation

The first legal recognition of same sex couples living together outside marriage took place in 1979 in the Netherlands. Ten years later, Denmark passed a law that allowed same sex couples to register their relationships. In 1999, the government of the Netherlands proposed a legislation allowing them to get married. The law was passed in 2001. Since then, many things have changed in terms of sexual orientation and human rights, believes Canadian attorney Robert Wintemute, Professor of Human Rights Law in the School of Law, King’s College London. Wintemute is a leading scholar in the area of sexual orientation. According to him a significant number of laws have been passed in the last 20 years. In the following interview, he analyses the global situation on the issue of sexual rights.

How’s the debate on same sex unions/marriage in Europe nowadays?

In Europe we are getting to the point where we can argue that it’s an obligation of governments to provide some form of legal recognition to same sex couples. The reason why we are able to argue that it is such an obligation is because so many countries of the European Union have passed laws on same sex couples – about 14 out of 27, that means over 50%. We are talking about countries that have passed some kind of registration laws, and the rights attached to the registration of these unions vary greatly, like adoption. In the United Kingdom we have the civil partnership and it’s for same sex only. It involves registrations of the relationship. Only four countries so far have actually allowed same sex couples to marriage – the Netherlands, Belgium, Spain and Norway. Sweden is almost ready to do, so probably by next year they’ll have a law like that.

Are same sex unions nowadays seen as a human right there?

It’s getting there, because first of all a human right should be free of discrimination, including discrimination based on sexual orientation. That principle has been applied to different areas of Law, first criminal law. In European Human Rights Law a principle that is very well established as an individual – you can not be deprived of any opportunity because of your sexual orientation or your gender identity. The most recent case is from January 2008: a lesbian woman applied to be a potential adoptive parent and was turned down because of her sexual orientation. As couples, the evolution has gone that far – the principle that has been established is that same sex couples must be given all the rights of all married different sex couples.

The situation is still very different in other parts of the world, like in South America, though. You were recently in Argentina, accompanying the debate on same sex marriage in the Supreme Court.

Yes, the case of Maria Rachid and Claudia Castro, two women who sought to marry and were refused. The case is at the Corte Suprema de Justicia de la Nacion Argentina. They are basing the case mainly on the Constitution of Argentina.

What should be the right strategy?

That depends on the country. In some countries it’s not legally possible to challenge the exclusion of same sex couples from civil marriage in the Courts. If it is possible it’s definitely worth pursuing, unless the Law suggests there’s no chance. In that case it’s not really worth taking the case because the negative decision won’t help, unless all you want to do is to publicize. A good strategy is to publicize the existence of same sex couples wanting to marry and to make it clear that it’s the responsibility of the Legislature and the Courts can’t help. Even that can be a benefit to the case. Meanwhile, in many countries the other option is to pursue a Bill in Legislature, campaign for it, and that also involves public education.

In Brazil the cases are moving from Legislature to the Judiciary, going to Court…

Minorities facing discrimination and violation of human rights always have two options: going to Court or going to the Legislature. Companies wanting to change the tax law generally have one option: going to the Legislature and the Government, because they don’t have a human right to lower taxes. Now minorities need these two options because the majority of society controls the Legislature and they are often completely insensitive with the needs and problems of the minorities. It is actually the duty of the Courts to defend human rights and protect minorities against discrimination. So it’s an important option to be used, but it’s not meant to be exclusive. These two options can influence each other because Court decisions inspire Legislature, Legislature can take action and vice versa. In countries like Brazil both strategies are pursued at the same time.

In Brazil, same sex marriage used to be a priority of the Brazilian LGBT movement. Nowadays the priority is the criminalization of homophobia. How do you evaluate this kind of law?

Personally I think the top priority should be a general anti-discrimination law at the federal level, prohibiting discrimination based on sexual orientation or gender identity in access to employment, education, housing and other services. That is the most important value in most countries and once successfully achieved it means that the society accepts that the LGBT persons have the same right to equal opportunities in life as people from racial minorities, women or other groups. It’s an important principle to establish the Legislation as a great symbolic value. I see criminalizing homophobia as a secondary issue. Criminalizing homophobia is about preventing discrimination and, even more important, about preventing violence. In preventing violence the approach used in the US is to pass laws called crime laws, which calls for either special crimes – we can have a crime of racist violence, with a higher penalty – or we can have the same general crime that already exists. But if the motivation of crime is homophobia, then the judge may impose a higher sentence. The motivation is considered an aggravating factor in deciding the sentences. These laws are very common in the United States and there’s a campaign to have one passed at the federal level. I don’t think special laws or special penalties for hate crimes should be necessary. I don’t think an assault or murder is any worse because of the motivation. The problem is that the laws against violence exist but the police don’t take violence against LGBT persons seriously.

Besides hate crimes there’s also hate speech…

Hate speech is even more preventive than hate crimes law, cause hate crimes laws don’t necessarily actually prevent anything, they just punish. A hate crime involves physical violence. Actually you don’t have a conflict with another human right, although some argue at the Supreme Court that if I say “dirty faggot”, just before I hit you, and then I receive a heavier penalty, this is because I said it. Their argue doesn’t work because you are being punished for the combination of physical violence and the words, not the words on their own. So hate crime laws are actually easier to pass in the sense they don’t involve any conflict with another human right. Hate speech laws are harder because you have a conflict with the human rights – you have the right to be free of discrimination based on sexual orientation – but the hate speaker can claim for freedom of speech, and that argument has been accepted by the US Supreme Court.

On the other hand, in Europe, if you allow hate speech, it may lead to concentration campus. So you’ve got to act quickly. If people say “Jews are evil”, that is illegal in most European countries. You can be prosecuted for that. You find minority protective laws everywhere in the continent. The difficult question in Europe is what to do about sexual orientation. I don’t think hate speech laws should exist, but on the other hand if they do exist, they only cover race, not sexual orientation.

You were in the crew of experts who prepared the Principles of Yogyakarta, a document with a wide variety of different legal and social issues. How can these principles help?

I recommend the Principles to be used in a selective way. If a particular issue in your country which are national priorities – concerning criminalizing homophobia, hate speech laws, adoption or equalizing same sex couples – consult the Yogyakarta Principles. The document should be used to build national campaigns. Take the appropriate principles and use them to support your campaign at the national level.