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Sex, Love, and Marriage: Questioning Gender and Sexuality Rights in International Law

Published online by Cambridge University Press:  01 March 2008

AEYAL M. GROSS
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Extract

The cover of Sex Rights: The Oxford Amnesty Lectures 2002 shows a picture of two men photographed from the back, with their hands holding each other's waists. They are walking towards a camera crew. Based on the way they are dressed, it seems that they have just been married. Both men are wearing white dress shirts and have similar hairstyles, with one wearing a black waistcoat over the white shirt and the other with black braces. This collection, based on the Oxford Amnesty Lectures series on gender and sexuality, thus apparently features on its cover the same-sex marriage of two men, ostensibly held in one of the few jurisdictions that have legalized such a union (perhaps the Netherlands, which was the first to do so, and was later followed by Belgium, Spain, Canada, Massachusetts (United States), and South Africa). And while we know that ‘love and marriage go together like a horse and carriage’, what has sex got to do with this? Would it not be more appropriate for a cover of a book entitled Sex Rights to feature two persons engaged in sex or having just engaged in sex rather than a marriage ceremony? Would it not be more appropriate to depict, on a cover of a book called Sex Rights, a picture of two men in a position that suggests they have just had sex, an act for which they could be persecuted and prosecuted in various jurisdictions?

So why, then, does a book on Sex Rights feature same-sex marriage on its cover?

Type
REVIEW ESSAY
Information
Leiden Journal of International Law , Volume 21 , Issue 1 , March 2008 , pp. 235 - 253
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2008

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References

1. International Covenant on Civil and Political Rights, UN Doc. A/6316 (1966) (hereinafter ICCPR).

2. Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/23 (1993). Notably, gender-based violence is not limited to violence against women. Indeed, although the discussion of gender often focuses on issues pertaining to women's rights, one should not overlook the effect of the gender system on men. See, e.g., S. Sivakumaran, ‘Sexual Violence against Men in Armed Conflict’, (2007) 18 EJIL 253.

3. Beijing Declaration and Platform for Action, UN Docs. A/CONF.177/20 and A/CONF.177/20/Add.1 (1995). For a discussion, see ‘Women’, in S. Marks and A. Clapham, International Human Rights Lexicon (2005), 411.

4. For a discussion, see ‘Sexuality’, in Marks and Clapham, supra note 3, 327

5. Proposed Resolution on Human Rights and Sexual Orientation, UN Doc. E/CN.4/2003/L.92 (2003). See Human Rights Watch, ‘Sexual Orientation and Gender Identity: Briefing to the 60th Session of the UN Commission on Human Rights’, January 2004, available at http://hrw.org/english/docs/2004/02/02/global7249.htm. In the third session of the Human Rights Council, which replaced the Commission, held in December 2006, the so-called Norwegian Statement, made on behalf of 54 states, became the most significant statement to date made in the framework of the United Nations on sexual orientation and gender identity rights. See http://www.ilga-europe.org/europe/issues/international/norwegian_statement_at_the_un.

6. E. Heinze, Sexual Orientation – A Human Right: An Essay on International Human Rights Law (1995).

7. R. Wintemute, Sexual Orientation and Human Rights: The United States Constitution, the European Convention, and the Canadian Charter (1995).

8. Toonen v. Australia, UN Human Rights Committee, UN Doc. CCPR/C/50/D/488/1992 (1994) (hereinafter ‘Toonen v. Australia’).

9. Amnesty International, Breaking the Silence: Human Rights Violations Based on Sexual Orientation (1994).

10. For an introduction to queer theory, see A. Jagose, Queer Theory: An Introduction (1996). For an introduction to queer legal theory, see C. Stychin, Law's Desire: Sexuality and the Limits of Justice (1995), 140–56.

11. On the historical context of modern gay identity, see D. Halperin, One Hundred Years of Homosexuality (1990). On ‘gay’ identity as a product of globalization, see D. Altman, ‘Global Gaze/Global Gays’, (1997) 3 GLQ 417. On the complex interaction between local and global identities in this context, see L. Rofel, ‘Qualities of Desire: Imagining Gay Identities in China’, (1999) 5 GLQ 451. See also D. Altman, ‘Rupture or Continuity? The Internationalization of Gay Identities’, in J. C. Hawley (ed.), Post-Colonial, Queer: Theoretical Intersections (2001), 19. For a discussion of the complexities of ‘queer globalization’, see A. Cruz-Malavé and M. F. Manalansan IV, ‘Dissident Sexualities/Alternative Globalisms’, in A. Cruz-Malavé and M. F. Manalansan IV (eds.), Queer Globalization: Citizenship and the Afterlife of Colonialism (2002), 1–10. For some accounts of forms of sexuality that differ from modern Western forms, see, e.g., G. H. Herdt (ed.), Rituals of Manhood: Male Initiation in Papua New Guinea (1982); T. Watanabe and J. Iwata, The Love of the Samurai: A Thousand Years of Japanese Homosexuality (1989).

12. For a collection of sources on the cultural relativism and human rights debate, see H. Steiner and P. Alston, International Human Rights in Context (2000), 323–553.

13. See, e.g., David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (2004), 3–35.

14. See, e.g., J. Butler, Gender Trouble (1990); J. Butler, ‘Imitation and Gender Insubordination’, in D. Fuss (ed.), Inside/Out: Lesbian Theories, Gay Theories (1991) 13.

15. On the critique of rights, see Kennedy, supra note 13; Duncan Kennedy, A Critique of Adjudication (1997), 299–388.

16. For other interesting attempts to reconstruct rights from critical feminist and race perspectives, see J. Nedelsky, ‘Reconceiving Rights as Relationships’, (1993) 1 Review of Constitutional Studies 1; P. Williams, ‘Alchemical Notes: Reconstructing Ideas from Deconstructed Rights’, (1987) 22 Harvard Civil Rights-Civil Liberties Law Review 401. For a critique of reconstructive projects, see Kennedy, supra note 15, at 359–61.

17. Convention on the Elimination of all Forms of Discrimination against Women, UN Doc. A/34/46 (1979).

18. See generally S. Benhabib and D. Cornell (eds.), Feminism as Critique (1987).

19. See also on these issues W. Brown, States of Injury: Power and Freedom in Late Modernity (1995).

20. J. Halley, ‘From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work and Sex Trafficking: Four Studies in Contemporary Governance Feminism’, (2006) 29 Harvard Journal of Law and Gender 335.

21. See more broadly J. Halley, Split Decisions: How and Why to Take a Break from Feminism (2006).

22. The others are Belgium and Spain. Outside Europe, Canada, South Africa, and, within the United States, Massachusetts have all legalized same-sex marriage. In Israel, same-sex couples who get married in a foreign country that conducts such marriages can register in the Israeli population registry as married.

23. Goodwin v. UK, Decision of 11 July 2002, [2002] ECHR.

24. Karner v. Austria, Decision of 24 July 2003, [2003] ECHR.

25. Young v. Austria, UN Human Rights Committee, UN Doc. CCPR/C/78/D/941/2000 (2003). The Committee recently repeated this determination. See X v. Columbia, UN Human Rights Committee, UN Doc. CCPR/C/89/D/1361/2005 (2007). The Committee, however, rejected the argument that the denial of same-sex marriage violates the ICCPR. See Joslin et al. v. New Zealand, UN Human Rights Committee, UN Doc. A/57/40 (2002).

26. G. Rubin, ‘Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality’, in H. Abelove, M. A. Barale, and D. M. Halperin (eds.), The Lesbian and Gay Studies Reader (1993), 3. The article was originally published in C. S. Vance (ed.), Pleasure and Danger: Exploring Female Sexuality (1984), 267.

27. National Coalition for Gay and Lesbian Equality v. Minister of Justice, [1998] SACHS CCT 11/98 (9 October 1998).

28. Lawrence v. Texas, 539 US 558 (Sup. Ct. 2003).

29. Dudgeon v. Ireland, Decision of 22 October 1981, [1982] ECHR (Ser. A.); Norris v. Ireland, Decision of 26 October 1988, [1989] ECHR (Ser. A.); Modinos v. Cyprus, Decision of 22 April 1993, [1993] ECHR (Ser. A.).

30. Toonen v. Australia, supra note 8 Error! Bookmark not defined.

31. Human rights included in the decisions cited above are the rights to privacy, equality, and liberty.

32. M. Warner, The Trouble with Normal: Sex, Politics and the Ethics of Queer Life (1999), 96.

33. Ibid., at 81–147; J. Halley, ‘Recognition, Rights, Regulation, Normalization: Rhetorics of Justification in the Same-Sex Marriage Debate’, in M. Andenaes and R. Wintemute (eds.), The Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law (2001), 97.

34. Halley, supra note 33, at 99.

35. See note 11 and accompanying text, supra. For a discussion of the ways in which the Western model of gay identity is ‘exported’ into legal and human rights work, see S. Katyal, ‘Exporting Identity’, (2002) 14 Yale Journal of Law and Feminism 97. For additional critiques of the turn to gay identity rights politics in international human rights, see K. Walker, ‘Capitalism, Gay Identity, and International Human Rights Law’, (2002) 9 Australian Gay and Lesbian Law Journal 58; W. Morgan, ‘Queering International Human Rights Law’, in D. Herman and C. Stychin (eds.), Law and Sexuality (2001), 208. See also B. Cossman, ‘Gender Performance, Sexual Subjects and International Law’, (2002) 15 Canadian Journal of Law and Jurisprudence 281. For an account of the need to address these questions while doing human rights work, see Human Rights Watch, In a Time of Torture: The Assault on Justice in Egypt's Crackdown on Homosexual Conduct (2004), 4–6. For a discussion see A. Gross, ‘Queer Theory and International Human Rights Law: Does Each Person Have a Sexual Orientation?’, (2007) 101 ASIL Proceedings (forthcoming).

36. G. Herdt (ed.), Third Sex, Third Gender: Beyond Sexual Dimorphism in Culture and History (1996). On the diversity of ‘queer subcultures’ beyond the Western models of gender and sexuality and their relevance to the question of rights, see Sinfield's contribution to Sex Rights, p. 154.

37. The classic text on the way in which modern sexual identities are created through, rather than pre-existing, discursive practices is M. Foucault, The History of Sexuality, Vol. 1: An Introduction (1990).

38. The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, available at http://yogyakartaprinciples.org (hereinafter Yogyakarta Principles). The Yogyakarta Principles were issued by a group of 29 international human rights experts under the auspices of the International Commission of Jurists and International Service for Human Rights.

39. See, e.g., ibid., Principle 8 on the right to a fair trial, Principle 14 on the right to an adequate standard of living, and other principles.

40. Ibid., Introduction, at nn. 1, 2.

41. See notes 35–7 and accompanying text, supra. On sexuality as a constitutive principle of the self, defined as a separate sexual domain within one's psychological nature, and generating sexual identity, as a peculiar turn in conceptualizing human nature, that, along with other developments, marks the transition to modernity in northern and western Europe, see Halperin, supra note 11, at 24–5.

42. See J. Butler, Undoing Gender (2004).

43. B. Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (1983), 5.

44. Butler, Gender Trouble, supra note 14, at 1–34, 110–28.

45. K. Marx, ‘On the Jewish Question’, in R. C. Tucker (ed.), The Marx-Engels Reader (1972), 26, at 45.

46. See, e.g., C. Howell, J. Nestle, and R. Wilchins (eds.), Genderqueer: Voices from beyond the Sexual Binary (2002).

47. See notes 27–34 and accompanying text, supra.

48. On the need to think beyond the heteronormative conceptions of kinship, see Butler, supra note 42, at 102–30. See also K. Weston, Families We Choose: Lesbians, Gays, Kinship (1991).

49. On the need to think of different forms of relationships beyond the heterosexual model, following Foucault's idea of the need for what he called a ‘new relational right’, see A. M. Gross, ‘Challenges to Compulsory Heterosexuality: Recognition and Non-recognition of Same-Sex Couples in Israeli Law’, in Andenaes and Wintemute, supra note 34, 391, at 411–14.

50. For the need to go beyond the liberal – and heteronormative – assumptions of international human rights law, see Morgan, supra note 35. As Morgan notes, pursuing legal strategies based on human rights means validating the theory of identity as given, with the possibilities of subject positions polarized into hetero/homo, the former being the normative category. Ibid., at 217.

51. I am continuing here Janet Halley's argument for an alternative to the normative demand to harmonize and reconcile the different theories on sexuality and her suggestion that splits among theories are part of their value and that we will make better decisions about what we want if we lavish attention and appreciation on the capacity of our theory-making to reveal the world as a place where interests differ. Halley, supra note 21, at 3.