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The Rejection of Human Rights Framings: The Case of LGBT Advocacy in the US
Julie Mertus
Human Rights Quarterly, Volume 29, Number 4, November 2007, pp. 1036-1064 (Article)
Published by Johns Hopkins University Press DOI:
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https://doi.org/10.1353/hrq.2007.0045
https://muse.jhu.edu/article/223904
HUMAN RIGHTS QUARTERLY
Human Rights Quarterly 29 (2007) 1036–1064 © 2007 by The Johns Hopkins University Press
The Rejection of Human Rights Framings: The Case of LGBT Advocacy in the US
Julie Mertus*
ABSTRACT
This article explores why many advocates concerned with lesbian, gay, and transgendered (LGBT) rights in the US have not chosen to frame their struggles in human rights terms. The article recognizes that framing a cause in human rights terms can be an effective way of claiming the moral high ground and of asserting affinity with others throughout the world who seek to condemn human wrongs and promote human dignity. However, this is not always the case. This article uses a historical review of LGBT organizing in the US to explain why human rights framings also may be viewed as unduly restrictive and even detrimental when identity is the central organizing factor.
* Julie Mertus is an Associate Professor and Co-Director of the M.A. program in Ethics, Peace and Global Affairs at American University. A graduate of Yale Law School, Professor Mertus has twenty years of experience working for a wide range of nongovernmental and governmental human rights organizations. Her prior appointments include: Senior Fellow, U.S. Institute of Peace; Human Rights Fellow, Harvard Law School; Writing Fellow, MacArthur Foundation; Fulbright Fellow (Romania 1995, Denmark 2006); and Counsel, Human Rights Watch. Her book Bait and Switch: Human Rights and U.S. Foreign Policy (Routledge, 2004) was named “human rights book of the year” by the American Political Science Association Human Rights Section. Her other books include: Human Rights and Conflict (United States Institute of Peace, 2006) (editor, with Jeffrey Helsing); The United Nations and Human Rights (Routledge, 2005); Kosovo: How Myths and Truths Started a War (University of California Press, 1999); and The Suitcase: Refugees’ Voices from Bosnia and Croatia (University of California Press, 1999). In the mid-1990s she served on the Board of Directors of the International Gay and Lesbian Human Rights Commission (IGLHRC).
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I. INTRodUCTIoN
Many advocacy groups turn to human rights language and adopt human rights strategies because doing so enhances their ability to become more significant players in international relations and to advance their cause in their home countries and regions.1 Human rights framings may be particularly advan- tageous for groups seeking to draw attention to a particular type of wrong (i.e., deprivation of liberty, denial of access to health care, or discrimination based on a prohibited ground). In these cases, reference to human rights triggers the identification of a class of victims, perpetrators, and wrongs for which relief may be sought. Invoking human rights talk can be an effective way of claiming the moral high ground and of asserting affinity with others throughout the world who seek to condemn human wrongs and promote human dignity.2 Human rights framings thus open doors for advocates, at both national and international levels, to institutions with common interests in human dignity, and enhance advocates’ abilities to exercise influence on norm-violating states.3
For advocacy groups commonly defined not by a particular type of wrong, but instead by an identity trait, however, the desirability of employ- ing human rights frames based on this identity trait is less clear. To be sure, some advocacy groups do accept and even promote traditional identity- based human rights frames. The decisions of advocates for people with dis- abilities4 and advocates for migrant workers5 to push for new international
1. See Kerstin Martens, Professionalized Representation of Human Rights NGOs to the United Nations, 10 Int’l J. Hum. Rts. 19 (2006).
2. For the role of “international solidarity” in international relations, see tRansnatIonal socIal movements and Global PolItIcs: solIdaRIty beyond tHe state (Jackie Smith, Charles Chatfield & Ron Pagnucco eds., 1997); GlobalIzatIons and socIal movements: cultuRe, PoweR and tHe tRansnatIonal PublIc sPHeRe (John A. Guidry, Michael D. Kennedy & Mayer N. Zald eds., 2000).
3. See generally maRGaRet e. KecK & KatHRyn sIKKInK, actIvIsts beyond boRdeRs: advocacy net- woRKs In InteRnatIonal PolItIcs (1998); JulIe a. meRtus, baIt and swItcH: Human RIGHts and u.s. FoReIGn PolIcy (2004); RestRuctuRInG woRld PolItIcs: tRansnatIonal socIal movements, netwoRKs and noRms (Sanjeev Khagram, James V. Riker & Kathryn Sikkink eds., 2002).
4. In August 2006, the Ad Hoc Committee of the UN General Assembly, which convened eight sessions and one working group meeting between 2002 and 2006, adopted a complete convention text for a UN Convention on the Rights of Persons with Disabilities and an Optional Protocol to the UN Convention (allowing for individual/group com- munications and procedures of inquiry). The draft Convention will be submitted to the full UN General Assembly for adoption by Member States following the review of the text by a Technical Drafting Committee. See Final Report of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promo- tion of the Rights and Dignity of Persons with Disabilities, U.N. GAOR, 61st Sess., Item 67(b), U.N. Doc. A/61/611 (6 Dec. 2006), available at http://www.un.org/esa/socdev/en- able/rights/ahcfinalrepe.htm.
5. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted 18 Dec. 1990, G.A. Res. 45/158, U.N. GAOR, 45th Sess., 69th plen. mtg., Annex, U.N. Doc. No. A/45/49, vol. 1 (1990) (entered into force 1 Jul. 2003), available at http://www.ohchr.org/english/law/cmw.htm.
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human rights treaties for their particular groups are just two recent cases in point. However, this article contends that a human rights framing also may be viewed as unduly restrictive and even detrimental when identity is the central organizing factor. This article proposes that advocates for lesbian, gay, bisexual, and transgender rights (LGBT) in the United States provide an apt illustration of the general reluctance of many advocacy groups to frame their concerns in terms of international human rights when doing so requires acceptance of set identity categories. These LGBT advocates do not actively reject opportunities to advance their concerns at conferences, meetings, and other domestic or international fora tasked with human rights promotion. Nonetheless, on the whole, very few LGBT groups in the United States rely on identity-based human rights framings as their preferred strategy for promoting social change. This article considers why this is so. Although the identity group in question throughout this article is “LGBT,” the explanations suggested in this case may apply to other identity groups that raise similar concerns about the limitations of human rights framings.
This article is organized in two main parts. First, it begins with a descrip- tion of the growing worldwide LGBT engagement with international human rights movements. The dominant organizing strategy for LGBT advocates on the international human rights stage has been one of assimilation; and, as this section demonstrates, efforts to gain entry into existing political and legal international human rights structures have met with considerable suc- cess. Second, having outlined LGBT experiences at the international level, the article considers the manner in which LGBT activism has evolved at the domestic level in the United States. Given that domestic LGBT politics are overwhelmingly informed by an assimilationist approach that should be compatible with human rights claims, one would expect that human rights framings would play a key role in domestic LGBT politics in the United States today. Yet this decidedly is not the case. The article concludes by offering some potential explanations for this phenomenon.
II. LGBT ENGAGEMENT IN INTERNATIoNAL HUMAN RIGHTS
LGBT advocates have engaged in two very different kinds of activities on the international human rights stage. First, they have engaged in traditional human rights activism, using the traditional human rights techniques of monitoring and reporting to apply existing human rights norms to LGBT lives, in particular: the right to privacy in the criminal law context; the right to equality; the right to family; the right to nondiscrimination; the right to freedom from torture (applicable in cases of “forcible cures” for homosexu- ality and psychiatric mistreatment generally); and the right of transsexuals to recognition of their new gender. Second, they have tapped into both
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traditional monitoring techniques and human rights culture-building efforts to promote new international human rights that are important to LGBT lives, including “the right to sexuality.”6 These two types of activism have occurred in two distinct time periods: (i) the period before the issue became a matter of concern to the main “gatekeeper” human rights nongovernmental orga- nizations (NGOs), that is, Amnesty International (AI), Human Rights Watch (HRW), and other large NGOs that influence which human rights concerns make it through the gate of acceptable human rights advocacy (roughly pre-1995);7 and (ii) the period after LGBT concerns infiltrated mainstream human rights NGO advocacy (roughly 1995 onward).
Until the mid- to late-1990s, most LGBT advocates seeking to do inter- national work on gay rights found themselves working with LGBT-specific organizations, most prominently the International Lesbian and Gay Associa- tion (ILGA), founded in 1978 in Brussels as a “world federation” organiza- tion, which today counts as its members more than 500 gay and lesbian organizations from ninety countries on all inhabited continents.8 From its inception, ILGA has “focused on presenting discrimination on grounds of sexual orientation as a global issue.”9 Another prominent group during this era was the International Gay and Lesbian Human Rights Commission (IGLHRC), founded originally in 1990 by Russian and US activists and now a US-based organization with offices in San Francisco, New York, and Bue- nos Aires.10 IGLHRC made its mark with some of the first testimony-driven reports on human rights abuses in LGBT communities around the world and with a strong LGBT asylum project that provides assistance to individual
6. See, e.g., Amnesty International USA, About LGBT Human Rights, available at http://www. amnestyusa.org/LGBT_Human_Rights/About_LGBT_Human_Rights/page.do?id=1106573 &n1=3&n2=36&n3=1123. For use of the term “the right to sexuality” see Committee on the Elimination of All Forms of Discrimination against Women, Consideration of Reports Submitted by States Parties under Article 18 of the Convention, Sixth Periodic Report of Nicaragua, U.N. CEDAW, 37th Sess., 762d mtg. (Chamber B), Summary Report, ¶ 8, U.N. Doc. No. CEDAW/C/SR.762(B) (2007).
7. See Julie Mertus, Applying the “Gatekeeper” Theory of Human Rights Activism: The Movement for LGBT Rights, Paper presented at the annual meeting of the International Studies Association, Town & Country Resort and Convention Center, San Diego, Cali- fornia, USA (22 Mar. 2006). Clifford Bob, Rights Indivisible? Structure and Strategy in the Emergence of “New” Human Rights, Paper presented at the annual meeting of the International Studies Association, Town & Country Resort and Convention Center, San Diego, California, USA (22 Mar. 2006).
8. See International Lesbian and Gay Association (ILGA), About ILGA, available at http:// www.ilga.org/aboutilga.asp; International Lesbian and Gay Association, First Pan African LGBTI Conference: African LGBTI Activists Meet in Johannesburg and Elect a Regional Body to Further Advance towards Equal Rights in Africa (23 May 2007), available at http://www.ilga.org/news_results.asp?LanguageID=1&FileCategoryID=50&FileID=1081& ZoneID=2.
9. See International Lesbian and Gay Association, supra note 8. 10. See International Gay and Lesbian Human Rights Commission (IGLHRC), IGLHRC FAQ,
available at http://www.iglhrc.org/site/iglhrc/section.php?id=35.
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asylum applicants as well as to country asylum offices searching for credible background information.11
While successful at raising LGBT concerns in several international fora, LGBT-specific organizations have faced substantial barriers to official repre- sentation at the United Nations (UN). The struggle of LGBT advocacy groups for consultative status with the UN Economic and Social Council (ECOSOC) provides perhaps the most telling illustration of UN differential treatment and hostility toward LGBT concerns. ECOSOC status, which is enjoyed by over 3,000 NGOs around the world, allows access to UN proceedings, presence at conferences, and rights to propose agenda items. Article 71 of the UN Charter provides that “[t]he Economic and Social Council may make suitable arrangements for consultations with non-governmental organizations which are concerned with matters within its competence.”12 ECOSOC guidelines on interpreting Article 71 provide that “ECOSOC decides on consultative status for NGOs based upon the recommendation of the inter-governmental Committee on Non-Governmental Organizations” (the NGO Section).13 The procedures for applying for and receiving ECOSOC status have been updated recently and remain quite complex.14
The procedures followed in the case of ILGA’s application, which began in 1991, have been anything but regular. Both the highly adversarial tone of the debate over the application and the degree of resources committed to fighting the group’s observer status were very unusual. In considering ILGA’s claim, the NGO Section of ECOSOC eventually decided to depart from its traditional consensus decision-making model and put ILGA’s application to a vote.15 Through this process, ILGA finally was awarded consultative
11. See International Gay and Lesbian Human Rights Commission, What We Do and Why, available at http://www.iglhrc.org/site/iglhrc/section.php?id=25; International Gay and Lesbian Human Rights Commission, Introduction to the Asylum Documentation Program, available at http://www.iglhrc.org/site/iglhrc/content.php?type=1&id=138.
12. U.N. cHaRteR art. 71, signed 26 June 1945, 59 Stat. 1031, T.S. No. 993, 3 bevans 1153 (entered into force 24 Oct. 1945), available at http://www.un.org/aboutun/charter/index. html.
13. See Outreach Division, United Nations Department of Public Information (UNDPI), What Is Consultative Status with the Economic and Social Council?, NGOs and the UNDPI: Some Questions and Answers, available at http://www.un.org/dpi/ngosection/brochure. htm.
14. A recent UN fact sheet explains how ECOSOC Resolution 1996/31 revised the arrange- ments for NGO consultation with ECOSOC:
It standardized arrangements for accrediting NGOs for UN conferences, streamlined the process of applying for ECOSOC consultative status, and decided that national NGOs would be eligible to apply. “General status” is granted to large, international NGOs that work on almost all the issues on ECOSOC’s agenda; “special consultative status” is granted to NGOs that have competence in a few of ECOSOC’s issue areas; while “roster status” is granted to NGOs which ECOSOC considers can make occasional useful contributions to its work.
Outreach Division, United Nations Department of Public Information, supra note 13, available at http://www.un.org/dpi/ngosection/brochure.htm.
15. Wayne Morgan & Kristen Walker, Tolerance and Homosex: A Policy of Control and Containment, 20 melb. u. l. Rev. 202, 213–14 (June 1995).
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status in 1993.16 This achievement was short-lived, however, as the United States almost immediately led a successful campaign to strip ILGA of its consultative status.17
The purported justification for the opposition to ILGA was the fact that some national member organizations, including US-based North American Man-Boy Love Association (NAMBLA), condoned inter-generational sex.18 Yet, even after ILGA expelled NAMBLA from its ranks, the UN refused to re-accredit the organization; and, as further punishment, UNAIDS: The Joint United Nations Programme on AIDS indicated that it would not fund any project linked to ILGA.19 In 2006, ILGA and another LGBT group seeking ECOSOC consultative status, Landsforeningen for Brsser og Lesbiske, the Danish National Association for Gays and Lesbians, were refused admission. This time, in casting its negative vote, the United States was joined by Iran and other countries with long records of state-conducted and state-condoned abuses against lesbian, gay, and transgender people: Cameroon, China, Cuba, Pakistan, the Russian Federation, Senegal, Sudan, and Zimbabwe.20
With the fight over ECOSOC status drawing a great deal of attention in the 1990s, many LGBT advocates found alternative ways to exercise influ- ence at the UN level. In particular, LGBT advocates took full advantage of the many UN meetings of the decade, including most prominently the 1993 World Conference on Human Rights in Vienna,21 the 1994 International Conference on Population and Development (ICPD) in Cairo, Egypt,22 and the 1995 World Conference on Women in Beijing.23 Each world meeting
16. Id. See Douglas Sanders (International Lesbian and Gay Association), Human Rights and Sexual Orientation in International Law (17 Jul. 2005), available at http://www.ilga. org/news_results.asp?LanguageID=1&FileCategoryID=44&FileID=577&ZoneID=7.
17. Id. 18. See generally North American Man-Boy Love Association, available at http://www.
nambla.org. 19. Douglas Sanders, Kurt Krickler & Rodney Croome (International Lesbian and Gay As-
sociation), Non-Governmental Organisations, The ILGA: Finding a Place In International Law (20 Jul. 1997), available at http://www.ilga.info/Information/international/finding_ a_place_in_international.htm.
20. Press Release, Human Rights Watch, Letter to Secretary of State Condoleezza Rice (25 Jan. 2006), available at http://hrw.org/english/docs/2006/01/25/iran12536.htm. See also Press Release, Human Rights Watch, United Nations: U.S. Aligned With Iran in Anti-Gay Vote, Rice Must Explain Repressive UN Ban on LGBT Rights Groups (25 Jan. 2006), available at http://www.hrw.org/english/docs/2006/01/25/iran12535.htm.
21. Vienna Declaration and Programme of Action, U.N. GAOR, World Conf. on Hum. Rts., 48th Sess., 22d plen. mtg., part I, U.N. Doc. A/CONF.157/24 (1993), reprinted in 32 I.L.M. 1661 (1993), available at http://www.ohchr.org/english/law/vienna.htm.
22. Report of the International Conference on Population and Development, U.N. Doc. A/CONF.171/13 (1994), available at http://www.un.org/popin/icpd/conference/offeng/poa. html.
23. Fourth World Conference on Women: Action for Equality, Development, and Peace, Beijing Declaration and Platform for Action, U.N. GAOR, 50th Sess., U.N. Doc. A/ CONF.177/20 (1995), reprinted in RepoRt of the fouRth WoRld ConfeRenCe on Women (1995) (recommended to the UN General Assembly by the Committee on the Status of Women on 7 Oct. 1995), available at http://www.un.org/womenwatch/daw/beijing/platform.
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was really two simultaneous meetings: a NGO forum and an official govern- ment conference. LGBT advocates found ways to exercise influence over both the nature of the issues raised at the NGO fora and the presentation of information and lobbying at state levels.
In many respects, the world conferences were a tremendous networking exercise. LGBT advocates recognized at these conferences that they had natural allies in the reproductive health advocates who had started fram- ing their own concerns in terms of a right to sexuality. Prior to 1993, the concept of “sexual rights” was nowhere to be found in international docu- ments. Indeed, with the exception of provisions prohibiting discrimination on the basis of biological sex, matters of sexuality and sex practices were wholly ignored.24 However, due to the concerted efforts of a vocal and well organized coalition of women’s rights advocates, references to sexuality were included in the 1993 Vienna Declaration and Programme of Action.25 Yet, in that document the concept of a right to sexuality was incorporated only in a negative sense, as in recognition of women’s right to be free from sexual violence. It was not until the ICPD in 1994 that sexuality would “begin to sneak into international documents as something positive rather than always violent, abusive, or sanctified and hidden by heterosexual mar- riage and childbearing.”26 Significantly, the ICPD platform for action spoke more positively of sexuality, particularly in its section on “empowerment,” in terms of the state taking steps for “improving the status of women [and] enhanc[ing] their decision-making capacity at all levels in all spheres of life, especially in the area of sexuality.”27
LGBT advocates also learned at the international conferences that they had many allies in international women’s human rights movements. To be sure, many advocates for women’s rights were limited by their own homophobia and were easily manipulated by hate-filled, anti-lesbian pro- paganda.28 Yet as plans for the 1993 World Conference on Human Rights in Vienna took shape, many women’s human rights advocates were able
24. See Rosalind Pollack Petchesky, Sexual Rights: Inventing a Concept, Mapping an In- ternational Practice, in sexual IdentItIes, QueeR PolItIcs 118, 119–20 (Mark Blasius ed., 2001). See also Yasmin Tambiah, Sexuality and Human Rights, in FRom basIc needs to basIc RIGHts: women’s claIm to Human RIGHts 369 (Margaret A. Schuler ed., 1995).
25. See Vienna Declaration and Programme of Action, U.N. GAOR, World Conf. on Hum. Rts., 48th Sess., 22d plen. mtg., part I, U.N. Doc. A/CONF.157/24 (1993), reprinted in 32 I.L.M. 1661 (1993), available at http://www.ohchr.org/english/law/vienna.htm.
26. See Petchesky, supra note 24, at 120. 27. Report of the International Conference on Population and Development, U.N. Doc.
A/CONF.171/13 (1994), available at http://www.un.org/popin/icpd/conference/offeng/poa. html.
28. See cyntHIa RotHscHIld, InteRnatIonal Gay and lesbIan Human RIGHts commIssIon & centeR FoR women’s Global leadeRsHIP, wRItten out: How sexualIty Is used to attacK women’s oRGanIzInG (Scott Long & Susana T. Fried eds., 2005), available at http://www.iglhrc.org/files/iglhrc/ WrittenOut.pdf.
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to set aside their fears and recognize the concerns of lesbians as part and parcel of women’s concerns. HRW played a considerable role, largely through its nascent Women’s Rights Project working in the United States in conjunction with the Center for Women’s Global Leadership (CWGL) (led, not inconsequentially, by Charlotte Bunch, a woman who made her mark in the US political scene in the 1970s as a leading lesbian rights activist). The CWGL-sponsored Global Tribunal on Violations of Women’s Human Rights, an all-day hearing of women’s testimonies, included as a matter of course stories of women being beaten and killed in Latin America and stoned to death in Algeria for not accepting the dominant rules on sexuality and for living apart from men.29 Interactions among participants at the NGO forum brought LGBT issues to the attention of many activists for the first time, chal- lenging misinformation and stereotypes. Although LGBT advocates continued to face considerable resistance, even from their own human rights peers, it was clear by 1993 that they had emerged as a potent political force, albeit still at the margins of the human rights movement.30
The rest of the decade showed substantial progress from the margins of the movement to the center—or at least to a place much closer to the center. With their own separate workshops, displays, and speakers, in the main NGO halls as well as in the “lesbian tent,” and a panoply of workshops and activities, lesbian activists made an even stronger showing at the 1995 World Conference on Women in Beijing.31 CWGL staged another all-day tribunal in Beijing, but this time a number of testimonies focused on vio- lence against women for challenging socially-proscribed sexual norms. For example, government representatives heard the direct testimony of Palesa Beverley Ditsie of South Africa, who spoke about the abuses she suffered as a lesbian, urging, “Anyone who is truly committed to women’s human rights must recognize that every woman has the right to determine her sexuality free of discrimination and oppression.”32 The Platform for Action proposed at
29. centeR FoR women’s Global leadeRsHIP, testImonIes oF tHe Global tRIbunal on vIolatIons oF women’s Human RIGHts (Niahm Reilly ed., 1994). See also cHaRlotte buncH & nIamH ReIlly, centeR FoR women’s Global leadeRsHIP & tHe unIted natIons develoPment Fund FoR women (unIFem), demandInG accountabIlIty: tHe Global camPaIGn and vIenna tRIbunal on women’s Human RIGHts (1994).
30. The final text of the Vienna Declaration and Programme of Action did not include les- bian rights or the “right to sexuality.” See Vienna Declaration and Programme of Action, U.N. GAOR, World Conf. on Hum. Rts., 48th Sess., 22d plen. mtg., part I, U.N. Doc. A/CONF.157/24 (1993), reprinted in 32 I.L.M. 1661 (1993), available at http://www. ohchr.org/english/law/vienna.htm.
31. Press Release, Miranda Johnson (Feminist Majority Foundation), Lesbians Hold Press Conference For The Curious, Bytes from Beijing (3 Sep. 1995), available at http://www. feministmajority.net/global/beijing/beij903l.html.
32. Palesa Beverley Ditsie, Statement Delivered at the United Nations Fourth World Confer- ence on Women, Beijing, China (13 Sep. 1995), available at http://www.hartford-hwp. com/archives/28/014.html.
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the 1995 UN World Conference on Women in Beijing also was significant for advancing the concept of sexual rights. In more direct language than that found in nearly all earlier documents, the Platform specifically affirmed that “[t]he human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, includ- ing sexual and reproductive health, free of coercion, discrimination and violence.”33 Moreover, references to sexual orientation were prominently discussed and included in brackets (indicating failure to obtain agreement) in the draft Platform for Action. Significantly, representatives of more than forty countries endorsed these provisions.34
The visibility achieved for LGBT concerns at UN world conferences had an immediate impact on nearly every UN organ and agency considering social issues. Although not all of the attention to the issues was supportive of LGBT advocates, it is fair to say that UN organs found it much more difficult to ignore LGBT issues. Following the 1993 World Conference on Human Rights in Vienna, for example, the United Nations High Commissioner for Refugees (UNHCR) repeatedly recognized in several Advisory Opinions that gays and lesbians qualify as members of a “particular social group” for the purposes of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.35 In “Protecting Refugees,” the UNHCR declared:
Homosexuals may be eligible for refugee status on the basis of persecution because of their membership of a particular social group. It is the policy of UNHCR that persons facing attack, inhumane treatment, or serious discrimina- tion because of their homosexuality, and whose governments are unable or unwilling to protect them, should be recognized as refugees.36
Although implementation of these UNHCR guidelines would be highly de- pendent on the particular UNHCR or government officer making the status determination, UNHCR’s specific inclusion of homosexuals created new possibilities for some LGBT refugees.
Debates within UN organs about how to address LGBT concerns ran parallel to similar debates within human rights NGOs. The experiences at
33. Fourth World Conference on Women: Action for Equality, Development, and Peace, Beijing Declaration and Platform for Action, U.N. GAOR, 50th Sess., ¶ 96, U.N. Doc. A/CONF.177/20 (1995), reprinted in RePoRt oF tHe FouRtH woRld conFeRence on women (1995) (recommended to the UN General Assembly by the Committee on the Status of Women on 7 Oct. 1995), available at http://www.un.org/womenwatch/daw/beijing/plat- form.
34. Lisa Bennett-Haigney, Fourth World Conference Empowers Women, available at http:// www.now.org/nnt/11-95/china.html.
35. See Human Rights Education Association, Sexual Orientation and Human Rights, Study Guides, available at http://www.hrea.org/learn/guides/lgbt.html.
36. Id.
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AI and HRW, two of the largest and most important international human rights NGOs, are instructive. By 1979, “AI recognized that ‘the persecution of persons for their homosexuality is a violation of their fundamental rights.’”37 However, it was only in the early 1990s that AI began to campaign in earnest against persecution of sexual minorities. In 1991, after contentious debate among its leaders and membership, AI took the first step of protecting LGBT “prisoners of conscience.”38 This approach encompassed those whom the state had jailed or persecuted but failed to address other forms of discrimination within society. Since the new policy was adopted, AI chapters have staged letter-writing campaigns for LGBT prisoners in a wide range of countries, including Cameroon, Uganda, Guatemala, the United States, Turkey, Nepal, Saudi Arabia, South Korea, and China.39
After AI successfully added LGBT prisoners to its letter-writing campaigns, LGBT advocates within AI began to push their organization to do even more. In 1993, AI became the first mainstream human rights organization to publish a widely circulated monograph on gay and lesbian rights as human rights. This publication was followed by several other influential topical and regional reports on LGBT issues.40 Over time, two programs within AI were added specifically to address LGBT issues: (i) the International LGBT Net- work,41 and (ii) OUTfront!, AI USA.42 The International LGBT Network sought to provide a focal point for volunteer activism on LGBT issues and to help facilitate national networks to share materials, skills, or experience with each other in order to foster greater AI LGBT presence and visibility. While the International LGBT Network engaged in international advocacy, OUTfront! worked within the United States for similar goals: promoting human rights standards that protect the basic human rights of LGBT people; increasing public awareness of human rights abuses based on sexual orientation and gender identity; and working in coalition with LGBT, religious, youth, and other groups to develop community-based responses to human rights issues facing the LGBT community. With the hiring, in 2004 to 2006, of a record
37. Decision 7 of its 1979 International Council Meeting. Amnesty International (AI), First Steps of AI: Coming Out for LGBT Rights, General Info - Gay and Bisexual Issues, avail- able at http://www.ai-lgbt.org/general_info.htm.
38. Laurence R. Helfer & Alice M. Miller, Sexual Orientation and Human Rights: Toward a United States and Transnational Jurisprudence, 9 HaRv. Hum. Rts. J. 61, 90 (1996).
39. See generally Amnesty International, Actions, available at http://action.web.ca/home/ lgbt/alerts.shtml?AA_EX_Session=62e84f680669165e5adb265e1445e7fe.
40. See amnesty InteRnatIonal, cRImes oF Hate, consPIRacy oF sIlence: toRtuRe and Ill-tReat- ment based on sexual IdentIty (2001), available at http://web.amnesty.org/library/pdf/ ACT400162001ENGLISH/$File/ACT4001601.pdf.
41. See Amnesty International, International LGBT Network (ILGBT) of Amnesty International, General Info - Gay and Bisexual Issues, available at http://www.ai-lgbt.org/general_info. htm.
42. See Amnesty International USA, OUTfront! Lesbian, Gay, Bisexual and Transgender Human Rights, available at http://www.amnestyusa.org/outfront.
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number of prominent, openly gay human rights advocates, and the place- ment of these advocates throughout the organization, AI could be said to have mainstreamed LGBT concerns. Whether this mainstreaming results in significant programmatic differences will be determined over time.
HRW, like AI, engaged very little on LGBT issues in the early 1990s. “We don’t have those people (LGBT) in Africa,” one HRW staffer remarked in 1993 to the then only openly gay researcher in the organization, who encountered a range of curious questions and remarks, such as: (i) “How do you ever find those people? I asked [the local human rights group] to speak to lesbians [in Russia], and no one came,” and (ii) “Did they know you had these special interests [i.e., being gay], when they hired you?” In 1996, HRW finally began reporting on the persecution of gay men and lesbians.43 The goal of HRW monitoring and reporting—their mainstay advocacy technique—is to name the abuse being observed as a human rights violation, to blame the violator for its actions, and then shame the responsible states and other cul- pable entities into taking corrective action. Illustrating the “gatekeeper model of human rights” in action—that is, strategic approaches by marginalized human rights issue advocates to garner the attention and support of leading mainstream human rights organizations—IGLHRC co-authored two of the early reports on LGBT rights published by HRW.44 With the aim of influenc- ing HRW further and establishing a presence in New York City (IGLHRC then was based exclusively in San Francisco), IGLHRC began renting office space at HRW in 2000. Within three years, the IGLHRC presence, coupled with other external and internal pressures, was enough to convince HRW to open its own Lesbian, Gay, Bisexual, and Transgender Rights Program (HRW LGBT Rights Program), with its own staff.45 The connection between IGLHRC and HRW ran even deeper. Scott Long, the director of the original New York IGLHRC office, soon became the director of the newly-formed HRW LGBT Rights Program.46
43. See Human Rights Watch, Lesbian and Gay Rights, Special Initiatives, Human Rights Watch World Report 1997, available at http://www.hrw.org/reports/1997/WR97/BACK- 05.htm#P426_162682. See generally Human Rights Watch, Lesbian, Gay, Bisexual, and Transgender Rights, available at http://www.hrw.org/lgbt. Reports have included: Human RIGHts watcH, HatRed In tHe Hallways: vIolence and dIscRImInatIon aGaInst lesbIan, Gay, bIsexual, and tRansGendeR students In u.s. scHools (2001), available at http://www. hrw.org/reports/pdfs/c/crd/usalbg01.pdf.
44. Human RIGHts watcH & tHe InteRnatIonal Gay and lesbIan Human RIGHts commIssIon, PublIc scandals: sexual oRIentatIon and cRImInal law In RomanIa (1998), available at http://www.hrw. org/reports97/romania; Human RIGHts watcH & tHe InteRnatIonal Gay and lesbIan Human RIGHts commIssIon, moRe tHan a name: state-sPonsoRed HomoPHobIa and Its conseQuences In soutHeRn aFRIca (2003), available at http://www.hrw.org/reports/2003/safrica/safriglhrc0303.pdf.
45. See Human Rights Watch, Lesbian, Gay, Bisexual, and Transgender Rights, available at http://www.hrw.org/lgbt.
46. See Human Rights Watch (HRW), Human Rights Watch Staff, About HRW, available at http://www.hrw.org/about/info/staff.html.
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Starting with two full-time staff,47 the HRW LGBT Rights Program has been able to intervene on a whole range of issues, both legally and through press releases and letter writing. Interventions have included, for example: (i) a letter to the Netherlands Minister of Alien Affairs and Integration protest- ing his proposal to resume expulsions of gay and lesbian asylum seekers to Iran;48 (ii) a letter to the Guatemalan president urging his government to take immediate steps to stop a pattern of deadly attacks and possible police violence against transgender women and gay men and to end impunity for these crimes;49 (iii) a report documenting and condemning violence against lesbians in South Africa;50 (iv) and press releases condemning the City of Mos- cow for attempting to ban a gay pride parade.51 In addition, the HRW LGBT Rights Program has published substantial reports on Egypt (which resulted in the release of many men arrested and tortured in a three-year crackdown against gays in Egypt)52 and Jamaica (which inaugurated a nationwide debate about sodomy laws, homophobic violence, and HIV/AIDS).53 According to HRW LGBT Rights Program director Scott Long, they planned reports for 2006 on binational same-sex couples under US law and on persecution of LGBT people in Turkey.54
The “green light” given by the mainstream human rights organiza- tions—the “gatekeepers” of the movement—to LGBT issues was enough to spur other, smaller, yet influential human rights organizations to engage in and further legitimize LGBT rights as a major human rights issue area. Some of the organizations thus activated included Human Rights First (formerly
47. As of this writing, Human Rights Watch has added a third person to its Lesbian, Gay, Bisexual & Transgender Rights Program staff. Id.
48. Press Release, Human Rights Watch, Netherlands: Threat to Return Gay and Lesbian Iranians: Letter to Minister Verdonk (8 Mar. 2006), available at http://www.hrw.org/eng- lish/docs/2006/03/08/nether12776.htm.
49. Press Release, Human Rights Watch, Guatemala: Transgender People Face Deadly Attacks (21 Feb. 2006), available at http://www.hrw.org/english/docs/2006/02/21/guatem12696. htm.
50. Press Release, Human Rights Watch, South Africa: Murder Highlights Violence Against Lesbians (3 Mar. 2006), available at http://www.hrw.org/english/docs/2006/03/02/saf- ric12753.htm.
51. Press Release, Human Rights Watch, Russia: Gay Pride Parade Should Not Be Banned (27 Feb. 2006), available at http://www.hrw.org/english/docs/2006/02/27/russia12728.htm.
52. Press Release, Human Rights Watch, Egypt: Homosexual Prosecutions Overturned (22 Jul. 2003), available at http://hrw.org/press/2003/07/egypt072203.htm; Press Release, Human Rights Watch, Egypt: Crackdown on Homosexual Men Continues (7 Oct. 2003), available at http://hrw.org/english/docs/2003/10/07/egypt6432.htm; Human RIGHts watcH, In a tIme oF toRtuRe: tHe assault on JustIce In eGyPt’s cRacKdown on Homosexual conduct (2004), available at http://hrw.org/reports/2004/egypt0304/egypt0304.pdf.
53. Press Release, Human Rights Watch, Jamaica: Investigate Murder of Alleged Lesbians (27 Jul. 2006), available at http://hrw.org/english/docs/2006/07/27/jamaic13869.htm; Human RIGHts watcH, Hated to deatH: HomoPHobIa, vIolence and JamaIca’s HIv/aIds ePIdemIc (2004), available at http://hrw.org/reports/2004/jamaica1104/jamaica1104.pdf.
54. Interview with Scott Long, Director, Human Rights Watch Lesbian, Gay, Bisexual & Transgender Rights Program, New York, NY (Feb. 2006).
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the Lawyers Committee for Human Rights), Global Rights (formerly the International Human Rights Law Group), the International Commission of Jurists, and CWGL.55 Human Rights First, for example, included LGBT hate crimes in its influential publication, Everyday Fears: A Survey of Violent Hate Crimes in Europe and North America, released in 2005.56 Global Rights re- ferred to the human rights of gays and lesbians in its Report on the Regional Preparatory Conferences of the Americas, released in 2001 before the UN World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance.57
The attention paid by HRW to the human rights of transgender people also has improved significantly in recent years. Throughout the history of the movements for gay liberation, transgender people have faced exclusion and alienation. Recently, for example, the organizers of the 1993 March on Washington refused to include the term “transgendered” in the name of the event (although they included “bisexual”). In 1994 transgendered people were excluded from the planning of the twenty-fifth Stonewall celebrations and the Gay Games in New York City.58 The new millennium, however, appears to be somewhat of a turning point. In more recent years, transgen- dered individuals and transgender activists have argued and won several court cases ensuring non-discrimination based on one’s sex as applied to transgendered people.59 Increasingly, they also are included in gay, lesbian, and bisexual activist communities.60
55. See generally Human Rights First, available at http://www.humanrightsfirst.org; Global Rights, available at http://www.globalrights.org; International Commission of Jurists, available at http://www.icj.org; Center for Women’s Global Leadership, available at http://www.cwgl.rutgers.edu.
56. mIcHael mcclIntocK, Human RIGHts FIRst, eveRyday FeaRs: a suRvey oF vIolent Hate cRImes In euRoPe and noRtH ameRIca (2005), available at http://www.humanrightsfirst.org/discrimina- tion/pdf/everyday-fears-intro-080805.pdf.
57. InteRnatIonal Human RIGHts law GRouP, RePoRt on tHe ReGIonal PRePaRatoRy conFeRences oF tHe ameRIcas (2001), available at http://www.globalrights.org/site/DocServer/chileprepcomeng. pdf?docID=198. See Report of the World Conference against Racism, Racial Discrimina- tion, Xenophobia and Related Intolerance, U.N. GAOR, 56th Sess., 20th plen. mtg., U.N. Doc. A/CONF.189/12 (2002), available at http://www.unhchr.ch/huridocda/huridoca. nsf/(Symbol)/A.Conf.189.12.En?Opendocument.
58. Kay Brown, TransHistory . . . Timeline of Significant Events, 20th Century Transgender History and Experience, available at http://jenellerose.com/htmlpostings/20th_cen- tury_transgender.htm.
59. See, e.g., Lie v. Sky Pub. Corp., 15 Mass. L. Rptr. 412 (Mass. Super. 2002); Doe ex rel. Doe v. Yunits, 15 Mass. L. Rptr. 278 (Mass. Super. 2001); Enriquez v. West Jersey Health Systems, 777 A.2d 365, 342 N.J. Super. 501 (N.J. Super. A.D. 2001); Tates v. Blanas, 2003 WL 23864868 (E.D. Cal. 2003); R.G. v. Koller, 415 F. Supp.2d 1129 (D. Hawaii, 2006); Doe v. United Consumer Financial Services, 2001 WL 34350174 (N.D. Ohio 2001); In re Guido, 1 Misc.3d 825, 771 N.Y.S.2d 789 (N.Y. City Civ. Ct. 2003). See also Hispanic Aids Forum v. Estate of Bruno, 16 A.D.3d 294, 792 N.Y.S.2d 43 (N.Y.A.D. 1 Dept. 2005). But see Goins v. West Group, 635 N.W.2d 717 (Minn. 2001); Broadus v. State Farm Ins. Co., 2000 WL 1585257 (W.D. Mo. 2000).
60. Soyoung Ho, Transgendered People Gaining Acceptance in Gay and Lesbian Community, columbIa news seRvIce, 7 Jul. 2002 (on file with author).
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International human rights organizations also have been increasingly influential in quasi-judicial and judicial victories for LGBT human rights. The first success at a quasi-judicial level occurred in 1994, when the UN Human Rights Committee (UNHRC)61 held that Tasmanian law criminalizing private consensual sex between men violated the right to privacy assured in the International Covenant on Civil and Political Rights (ICCPR).62 Other successes have included the finding by the UN Committee against Tor- ture that state authorities in Egypt have tortured suspected homosexuals,63 UNHRC’s condemnation of a Sudanese law stipulating the death penalty for committing a third homosexual act,64 and UNHRC’s concern that Zim- babwe has discriminated against homosexuals in immigration regulations.65 The first judicial victories emerged in the 1980s in Europe, when the Euro- pean Court of Human Rights held in two landmark cases that criminalization of private consensual adult sex between men violated the right to privacy protected by the European Convention on Human Rights.66 With this prec- edent as a guide, the European Court of Human Rights began developing an extensive jurisprudence on sexual identity and human rights. Early on, gays and lesbians were most likely to succeed under privacy claims before the European Court of Human Rights, while transgendered people gener- ally found non-discrimination law more effective for positive verdicts. Thus,
61. In 2006 the United Nations Commission on Human Rights was replaced by the United Nations Human Rights Council. See Office of the United Nations High Commissioner for Human Rights, Commission on Human Rights, available at http://www.ohchr.org/eng- lish/bodies/chr/index.htm; Resolution adopted by the General Assembly, U.N. GAOR, 60th Sess., 72d plen. mtg., U.N. Doc. A/RES/60/251 (2006), available at http://www. ohchr.org/english/bodies/hrcouncil/docs/A.RES.60.251_En.pdf.
62. Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights: Australia, U.N. GAOR, Hum. Rts. Comm., 50th Sess., U.N. Doc. CCPR/C/50/D/488/1992 (1994), available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.50.D.488.1992.En?Opendocument. See Kristen L. Walker, International Human Rights Law and Sexuality: Strategies for Domestic Litigation, 3 n.y. cIty l. Rev. 115 (1998).
63. Press Release, United Nations, Committee against Torture Issues Conclusions and Recom- mendations on Report of Egypt, CAT, 29th Sess. (20 Nov. 2002), available at http://www. unhchr.ch/huricane/huricane.nsf/view01/DC0415E44A8EECC0C1256C77005A7255?Op endocument.
64. Concluding observations of the Human Rights Committee, Consideration of Reports Submitted by States Parties under article 40 of the Covenant: Sudan, U.N. GAOR, Hum. Rts. Comm., 61st Sess., 1642nd mtg., ¶ 8, U.N. Doc. CCPR/C/79/Add.85 (1997), available at http://193.194.138.190/tbs/doc.nsf/ (Symbol)/bc310a747155dff880256553 00537fae?Opendocument.
65. Concluding observations of the Human Rights Committee, Consideration of Re- ports Submitted by States Parties under article 40 of the Covenant: Zimbabwe, U.N. GAOR, Hum. Rts. Comm., 62nd Sess., 1664th mtg., ¶ 24, U.N. Doc. CCPR/ C/79/Add.89 (1998), available at http://193.194.138.190/tbs/doc.nsf/(Symbol)/ 05c535a1e953a18880256656003671a7?Opendocument.
66. Norris v. Ireland, 142 Eur. Ct. H.R. (ser. A) (1988), App. No. 10581/83, 13 Eur. H.R. Rep. 186 (1989); Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (ser. A) (1981), 4 Eur. H.R. Rep. 149 (1982).
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it was the right to privacy under the European Convention that allowed advocates to successfully challenge the discriminatory age of consent in Britain67 and the ban on lesbians and gays serving in the armed forces in Britain.68 Anti-discrimination law, however, was held to protect a person who underwent sex reassignment surgery from discrimination on the basis of sex.69 Notably, in 1999, the European Court of Human Rights also held that the non-discrimination clause of the European Convention (Article 14), prohibits discrimination on the basis of sexual orientation.70
These and other successful efforts at international levels have had a profound influence on NGO organizing around LGBT issues throughout the world. The human rights framework has proved to be of great strategic importance for LGBT advocates. In the words of one African legal scholar, international human rights discourse
brings sexual orientation-based discrimination and persecution, which exists across cultures in varying degrees, into the global arena. This draws in the inter- national community, which brings in power to exert influence on governments. This occurs not only through sanction and shaming, but also through more subtle processes around the evolution and dissemination of norms. International attention also encourages civil society actors within countries to address novel issues and to link them to their existing goals.71
Many international LGBT advocates agree that on a pragmatic level, linking human rights and LGBT issues makes good sense. The benefit of human rights, however, has not been uniformly accepted by advocates in domestic arenas. This has been particularly true in the United States, where policymakers, the general public, and even many social change advocates still view human rights as something that applies not at home, but in some distant land.
67. See Eur. Comm’n H.R., Euan Sutherland v. United Kingdom (Commission Report), App. No. 25186/94, adopted 1 Jul. 1997, available at http://www.stonewall.org. uk/documents/Scan3.pdf. See also Sutherland v. United Kingdom (striking out) [GC], App. No. 25186/94 (27 Mar. 2001), available at http://cmiskp.echr.coe.int/tkp197/view. asp?action=html&documentId=697231&portal=hbkm&source=externalbydocnumber&t able=F69A27FD8FB86142BF01C1166DEA398649.
68. Lustig-Prean and Beckett v. United Kingdom, App. Nos. 31417/96 and 32377/96, 29 Eur. H.R. Rep. 548 (2000); Smith and Grady v. United Kingdom, 1999-VI Eur. Ct. H.R. 45, App. Nos. 33985/96 and 33986/96, 29 Eur. H.R. Rep. 493, n.10 (2000).
69. Eur. Ct. Justice, Case C-13/94, P. v. S. and Cornwall County Council, 1996 E.C.R. I-2143, [1996] All E.R. (EC) 397, CELEX 694J0013 (30 Apr. 1996).
70. Salguiero da Silva Mouta v. Portugal, App. No. 33290/96, 1999–IX Eur. Ct. H.R. 309, 31 Eur. H.R. Rep. 47 (2001).
71. Sebastian Maguire, The Human Rights of Sexual Minorities in Africa, 35 cal. w. Int’l l.J. 1, 21 (2004).
2007 LGBT Advocacy in the United States 1051
III. LGBT AdVoCACY IN THE US
The context and content of LGBT discourse and strategies in the United States has changed over time. Yet two constants have remained. First, the overwhelming majority of LGBT advocates have framed their struggle in civil rights terms with little or no reference to human rights. Second, on the level of strategy and tactics, a struggle has existed between assimilation-oriented strategies, which seek inclusion into existing institutions and structures, and oppositional strategies, which advance new priorities and advocate for alternative discourses within new or significantly revised institutions. To demonstrate these phenomena, this section explores the predominant strains in LGBT strategizing in the United States over three eras: the 1970s, the 1980s, and the 1990s and beyond.
A. The 1970s
For LGBT activists in the United States, the 1970s were marked by a struggle between assimilation-oriented activists and confrontational strategists. Some activists made a point of emphasizing their radicalism. They rejected “veterans of the homophile movement as old-fashioned ‘accomodationists’ and swept away their organizations, as well as the . . . coalition they had labored to build.”72 Instead, radical activists endeavored to build new organizations with more Leftist orientations. The manifesto of one of the most influential groups of the time, the Gay Liberation Front (GLF), declared itself to be
a revolutionary homosexual group of men and women formed with the realiza- tion that complete sexual liberation for all people cannot come about unless existing social institutions are abolished. We reject society’s attempt to impose sexual roles and definitions of our nature. . . . Babylon has forced us to commit ourselves to one thing . . . revolution!73
GLF’s actions did not match their revolutionary rhetoric, however. The main tactic of GLF was in fact consciousness-raising,74 a non-confrontational and “inward” experience that brought gays and lesbians together to discuss their experiences, with the aim of “cognitive liberation.”75 Interestingly, more public and strident actions were undertaken by GLF’s main competi-
72. eRIc maRcus, maKInG Gay HIstoRy: tHe HalF-centuRy FIGHt FoR lesbIan and Gay eQual RIGHts 121 (2002).
73. GLF Statement of Purpose, quoted in JoHn d’emIlIo & estelle b. FReedman, IntImate matteRs: a HIstoRy oF sexualIty In ameRIca 321 (1988).
74. See A Gay Male Group, Notes on Gay Male Consciousness-Raising, in out oF tHe closets: voIces oF Gay lIbeRatIon 293 (Karla Jay & Allen Young eds., 1992).
75. stePHen m. enGel, tHe unFInIsHed RevolutIon: socIal movement tHeoRy and tHe Gay and lesbIan movement 43 (2001).
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tor, the Gay Activist Alliance (GAA) which was in tone considerably less radical. GAA was formed as a counterweight to GLF, as it sought to work within, rather than outside the system to promote legal and social change. Through the efforts of GAA and other organizations, protests, “kiss–ins” in restaurants that refused to serve gay customers, publicized applications by gay and lesbian couples for marriage licenses, and intense “zaps” against media establishments that refused to acknowledge the homosexual com- munity all increased in frequency.76
Ultimately, the main character of the LGBT movements of the 1970s was liberal in nature, emphasizing the central liberal tenets of the day, for example, equality, integration, individual self-worth, and self-determination.77 Rejecting society’s attempts to brand them as pathologically abnormal, gay activists of the 1970s followed the mantra: If Anyone Needs to be Cured, it is the Oppressors, not the Oppressed.78 Their strategies relied heavily on collective efforts and solidarity, parades and marches, dances and parties, and celebrations of their sexuality in public places. As noted in a 1970 article in a San Francisco paper:
A reporter asked why we considered a gay picnic political. We told him that gay oppression was different from race oppression; that tearing off the mask of anonymity is the first step in our liberation. And we must take that first step.79
But, the article went on to explain, the performance of identity discovery runs in two directions. The act of exposing oneself publicly had an impact both on society and on the individuals involved. Just as society was forced to change in some way to respond to the newly unmasked members, so were the individuals undergoing unmasking.80 Their new-found self-confidence was a necessary first step in demanding social acceptance.
Within the hallowed halls of academia and, in particular, the profes- sion of psychiatry, homosexuality in the 1970s was still treated as either an abomination or a disease. This was increasingly unacceptable for US social change advocates. “In a climate increasingly affected by the rise of nationalist movements abroad, the Black struggle at home, and a new wave of feminism,” Roger Bayer explains in his seminal 1981 book, Homosexual- ity and American Psychiatry: The Politics of Diagnosis, “‘psychiatric cure’ became the equivalent of white supremacy, of patriarchal domination in the
76. maRcus, supra note 72, at 121–22. See generally toby maRotta, tHe PolItIcs oF HomosexualIty (1981).
77. enGel, supra note 75, at 43. See also JoHn d’emIlIo, sexual PolItIcs, sexual communItIes: tHe maKInG oF a Homosexual mInoRIty In tHe unIted states 1940–1970, at 224–25 (1983). See generally maRotta, supra note 76.
78. dennIs altman, Homosexual: oPPRessIon and lIbeRatIon 107 (1971). 79. By Two Lesbians, Christopher Street Liberation Day, come out! (Sept./Oct. 1970), re-
printed in altman, id. at 119–20. 80. Id.
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case of lesbianism—a ‘final solution’ to the problem of homosexuality.”81 Gay activists knew that “[m]ere tolerance [could no longer be] the goal; the demand was for social legitimation.”82
One real triumph came in 1973 when the Board of Trustees of the American Psychiatric Association voted to delete homosexuality as a mental disorder from the seventh printing of the second edition of the Diagnostic and Statistical Manual of Mental Disorders, or DSM-II.83 This move facilitated the creation of more open associations of lesbian and gay psychiatrists, including the Caucus of Gay, Lesbian, and Bisexual Members of the Ameri- can Psychiatric Association (CGLBM-APA).84 Another breakthrough came in August 1979, when LGBT activists succeeded in persuading the US Surgeon General, Julius Richmond, to rule that government physicians would no longer consider homosexuality a “mental disease” and to advise the Immigration and Naturalization Service (INS) to discontinue its twenty-seven year-old practice of referring suspected homosexuals to the Public Health Service for examination and, ultimately, denial of entry into the United States.85
Although the GLF collapsed in 1973 and the GAA disbanded in 1974, other single- and multi-issue organizations were ready to take their places. One organization established during this time, the National Gay Task Force, would become, as the National Gay and Lesbian Task Force (renamed in 1986), one of the leading US-based LBGT advocacy groups.86 Activists were able to capitalize on the social climate of the 1970s, which was charged with radical discontent and energized by youthful idealism. For the first time, “it was possible for (LGBT) activists to forge a broad-based alliance with liberal political figures, religious organizations, and civic leaders in order to press local, state, and federal governments to adopt new social policies toward homosexuals.”87 By 1976, fifteen states had decriminalized sodomy and thirty-two cities had adopted civil rights codes protecting homosexuals from discrimination. These victories set the tone for many additional as- similation-oriented legal strategies to come.
81. Ronald bayeR, HomosexualIty and ameRIcan PsycHIatRy: tHe PolItIcs oF dIaGnosIs 85 (1981). 82. Id. at 8. 83. bayeR, supra note 81, at 3, 132. See generally d’emIlIo & FReedman, supra note 73. 84. See generally Association of Gay and Lesbian Psychiatrists (AGLP), AGLP History, avail-
able at http://www.aglp.org/pages/chistory.html. 85. bayeR, supra note 81, at 193. 86. See generally National Gay and Lesbian Task Force (hereinafter “NGLTF”), available at
http://www.thetaskforce.org. 87. bayeR, supra note 81, at 156.
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B. The 1980s
For many LGBT activists, especially gay men, the 1980s were literally a time of struggling for survival. The social climate of the 1980s was conservative and hostile; and a devastating new public health crisis disparately affecting gay men challenged LGBT activists to provide new leadership and strategies. The first five cases of a new, untreatable form of cancer were reported by the New York Times in 1981; and by 1998 over 300,000 people would die from what would be identified as Acquired Immune Deficiency Syndrome (AIDS) (210,000 of them being gay men).88 That gay men were dying in large numbers from a disease that was believed to be transmitted primar- ily through homosexual sex acts provided fodder for hateful conservatives who blamed gay men for their own deaths.89 LGBT activists were forced to respond to a hateful social climate, while also responding to the media’s abdication of its responsibility. At this time the media did not provide full and unbiased information on the crisis as it unraveled, and the US health care establishment failed to provide adequate care for the ill or sufficient research toward a cure for AIDS.
As they had in the 1970s, LGBT activists again largely turned to self- help and mutual support to confront the crisis. Numerous community-based health organizations were formed to offer direct services to people affected by HIV/AIDS and to promote better information on “safer sex” practices.90 One group begun at the time to fill the gap left by the health care establish- ment was the Gay Men’s Health Crisis (GMHC), which eventually became the largest HIV/AIDS service organization in the world.91
As more gay professionals came out and became politically active, to some extent the entire LGBT movement benefited from their influx of ideas, resources, and experiences. However, most of the new AIDS-focused organizations failed to maintain the civil rights agendas of earlier social movements and groups.92 Moreover, much of the new resources stayed with HIV/AIDS organizations and did not trickle over to other, more broadly fo- cused LGBT organizations.93 This could have served to exacerbate tensions between gays and lesbians, the latter being less likely to be immediately affected by AIDS. Yet, the AIDS crisis had an opposite impact. The hateful responses of the Republican Party to the AIDS crisis, and the increasingly close ties between a misogynist and homophobic “religious right” and the
88. enGel, supra note 75, at 47. 89. Id. at 50–51. 90. baRRy d. adam, tHe RIse oF a Gay and lesbIan movement 156–57 (1995). 91. See generally Gay Men’s Health Crisis, available at http://www.gmhc.org. 92. enGel, supra note 75, at 52. 93. adam, supra note 90, at 156; enGel, supra note 75, at 52. See generally Randy sHIlts, and
tHe band Played on: PolItIcs, PeoPle and tHe aIds ePIdemIc (1988).
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presidencies of Ronald Reagan and George H. W. Bush, reminded lesbians that they lived in dangerous times. Whereas in the 1970s, lesbians felt they could retreat to their women’s-only world of woman-affirming concerts, bookshops, and cafes, in the 1980s they knew that they could not escape the world in which they lived.94 It was time to stand in solidarity with gay men. The desire for solidarity was particularly urgent for lesbian mothers, and lesbians planning to be mothers, who spoke of the need to struggle for a better world for their children. Also standing in solidarity were the families of People with AIDS (PWAs) who took part in demonstrations, such as the 1987 March on Washington, and in awareness-raising projects, such as the Names Project AIDS Quilt.95
The large number of people coming out in 1980s altered the face of LGBT politics forever. Increasingly, gays and lesbians were viewed by American politicians as an “interest group”—and a source of votes. One of the most influential lobbyist-oriented LGBT groups to arise in this time period was the Human Rights Campaign Fund (HRCF), an organization which, despite the use of the term “human rights” in its name, was resolutely grounded in liberal, civil rights frameworks and assimilation-oriented in character.96 HRCF advocated for gay and gay-friendly political candidates on local, state, and national levels, as well as lobbying for gay rights-related national legislation. In 1980, the year it was officially launched, HRCF made its first financial contribution of $1,000 to Congressman Jim Weaver (Democrat-Oregon), who defeated the candidate backed by the Moral Majority.97 By late in 1982, HRCF had raised over $800,000 and contributed $140,000 to 118 congres- sional gay or gay-friendly candidates—making HRCF the seventeenth-largest independent political action committee (PAC) in the United States; and 81 percent of HRCF-backed candidates won, including all co-sponsors of the gay and lesbian civil rights bill.98
Noting the power of the media in shaping opinions about gays and lesbians, a group of writers formed the Gay and Lesbian Alliance Against Defamation (GLAAD) in 1985. The group worked to promote “fair, accurate, and inclusive representation as a means of challenging discrimination based
94. enGel, supra note 75, at 49. 95. Id. See Eric E. Rofes, Gay Lib vs. AIDS: Averting Civil War in the 1990s, in we aRe
eveRywHeRe: a HIstoRIcal souRcebooK In Gay and lesbIan PolItIcs 652, 654 (Mark Blasius & Shane Phelan eds.,1997).
96. See Human Rights Campaign (HRC), The Human Rights Campaign & The Human Rights Campaign Foundation, available at http://www.hrc.org/about_us/what_we_do.asp, for a self-description. Interestingly, HRC never describes its work in human rights terms. See generally Human Rights Campaign, available at http://www.hrc.org.
97. Human Rights Campaign, Our History, available at http://www.hrc.org/about_us/2514. htm.
98. Id.
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on sexual orientation or identity.”99 Their activism involved monitoring media depictions of gays and lesbians and responding to those images, positive or negative, wherever they were used. Similar public-relations focused tactics were adopted by other new LGBT organizations in the 1980s and 1990s. Many of these groups were structured by profession, including among them teachers (GLSTN), lawyers (NGLLA), and journalists (NLGJA). Generally, this new growth of activist groups advocated equity for their gay and lesbian members, while simultaneously pushing their respective disciplines to take pro-gay stances on federal, state, and local initiatives affecting gay, lesbian, and bisexual people.100
The new professional LGBT organizations had many detractors who viewed them as not radical or sincere enough in their struggle for the ad- vancement of gays and lesbians. Impatient with incremental progress among policymakers and judges, many advocates turned to more confrontational strategies. ACT UP (AIDS Coalition to Unleash Power), founded in 1987, derided the work of assimilation-oriented organizations like GLAAD, GMHC, and HRCF.101 In contrast to the mainstream methods of the assimilation- oriented groups, ACT UP methods were “disruptive” and garnered a great deal of attention in the media. Their initial and best-known campaign was carried out in March 1987, on Wall Street in New York City, when hundreds of demonstrators gathered in front of the financial centers and protested the rampant and immoral profiteering of numerous pharmaceutical companies— especially Burroughs Wellcome, the manufacturer of the AIDS drug AZT. Chants such as “We are angry, we want action,” and “Release those drugs, release those drugs,” filled New York City streets; and seventeen individuals were arrested shortly thereafter. However, as a result, the FDA announced its promise to shorten the drug approval process for AZT.102
Militant groups like ACT UP were not the only ones taking to the streets in the 1980s. The capstone protest of the 1980s brought a half a million gays and lesbians of all ideological stripes to the nation’s capital to protest the government’s inadequate response to the AIDS crisis and the United States Supreme Court’s decision to uphold state anti-sodomy laws in Bowers v.
99. Press Release, Gay & Lesbian Alliance Against Defamation (GLAAD), GLAAD Launches National Toll-free Alert Line (7 Aug. 1996), available at http://www.uky.edu/StudentOrgs/ QueerInfo/glaad.htm.
100. See generally GLSEN, Inc., the Gay, Lesbian and Straight Education Network, available at http://www.glsen.org; National Lesbian and Gay Law Association, available at http:// www.nlgla.org; National Lesbian & Gay Journalist Association, available at http://www. nlgja.org.
101. enGel, supra note 75, at 50. See uRvasHI vaId, vIRtual eQualIty: tHe maInstReamInG oF Gay and lesbIan lIbeRatIon 94 (1995).
102. ACT UP New York, First ACT UP Demonstration, Detailed Scene List and Transcript, Fight Back, Fight AIDS: 15 Years of ACT UP (compilation of archival video documentation), available at http://www.actupny.org/divatv/synopsis75.html.
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Hardwick (1986).103 LGBT activists declared the march to be relatively suc- cessful in focusing national attention on the plight and demands of American gays and lesbians. The most important consequence of the march, however, was the momentum it generated within US LGBT rights movements.104
Galvanized by the Washington march and angered by the lack of response by government officials to their concerns, LGBT activists concluded the 1980s with a flash of militancy. Four activists from ACT UP, who personally had experienced anti-gay violence, formed Queer Nation, a self-proclaimed non-violent, direct action network that promoted “an ideology of fluid sexu- ality” (neither gay nor straight, but rather “queer”).105 One controversial “in your face” campaign involved “outing” public officials who were gay and lesbian106 in hope of convincing the American public that gays and lesbians were already in influential positions and acting as effective leaders. Queer Nation (and a related group, The Lesbian Avengers) were incredibly success- ful in rekindling pride and excitement among LGBT communities. While Queer Nation “struggled to find an organizational premise,”107 it appeared to be challenging traditional LGBT assimilation-oriented politics.108 Deeper analysis, however, revealed that Queer Nation was not as radical or differ- ent as it appeared. Once one got beyond the posturing and sloganeering, Queer Nation had more in common with the liberal, self-worth promoting, feel-good groups of the 1970s than it did with the anti-establishment work of ACT UP.
C. The assimilation-oriented 1990s and beyond
The 1990s witnessed a rapid return to assimilation-oriented politics. LGBT advocates in recent years have employed two distinct strategies for engage- ment with the political mainstream: (i) working to achieve influence over existing political structures, both along and across party lines; and (ii) utilizing legal institutions in a more strategic manner to reduce discrimination and increase access to mainstream institutions.
103. See vaId, supra note 101, at 99. See also Human Rights Campaign Foundation, In the Beginning, There Was a March: 1987, available at http://www.hrc.org/issues/3350. htm.
104. Id. See generally maRGaRet cRuIKsHanK, tHe Gay and lesbIan lIbeRatIon movement (1992). 105. enGel, supra note 75, at 56; Ann Northrup, quoted in maRcus, supra note 72, at 320–
21. 106. Rona Marech, Activists Consider Ethics, Efficacy of Outing, san FRansIsco cHRonIcle, 14
Nov. 2004, available at http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2004/11/14/ MNGF69RDSR1.DTL.
107. enGel, supra note 75, at 56. 108. Id.
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(1) Working through political structures
The first presidential election of the 1990s constituted a decidedly seminal moment in LGBT rights movements. The two major political parties and their respective candidates took starkly different positions in regard to the LGBT community. Democrat Bill Clinton courted the gay and lesbian vote, speaking “inclusively of gay and lesbian people . . . and outlined his pro-gay federal policies, including his support for increased AIDS funding, protections for gay and lesbian workers, and an end to the ban on gay people serving in the military.”109 Meanwhile, George H. W. Bush clung to anti-gay tenets and policies in line with the religious right’s growing influence on the Republican Party. This political context allowed LGBT activists to consolidate their sup- port and resources behind a prominent political candidate in a mainstream political race. Bill Clinton won the presidency, with 95 percent of gays and lesbians voting for him,110 as well as contributing over $3 million to his campaign fund.111 This represented the first time that the LGBT community voted en bloc for a presidential candidate. In 1998, despite great differences in race, age, gender, and income, 65 percent of all openly gay, lesbian, and bisexual people voted for Democratic Party candidates for local, state, and congressional offices.112 This pattern has remained relatively consistent.
Another strategy employed since the 1990s involves lobbying and provid- ing support for openly gay or LGBT-friendly political candidates who could be expected to vote in the correct manner on legislation of LGBT concern. For example, in 1993, HRCF’s heavy lobbying and constituency pressures led the United States Congress to pass the Hate Crimes Sentencing Enhancement Act, which increased federal sentences for hate crimes—including those targeting gays and lesbians.113 And in 1994, HRCF supported representatives and senators who introduced a bill for the Employment Non-Discrimina- tion Act, which prohibited “employment agencies, labor organizations, and training programs from engaging in specified unlawful employment practices (discrimination) based upon sexual orientation.”114 The HRCF, concentrating heavily on political pressure and lobbying, now constitutes the largest civil
109. maRcus, supra note 72, at 345. 110. Press Release, Gay & Lesbian Alliance Against Defamation, A New Era for Gay and
Lesbian Americans (4 Nov. 1992), available at http://www.glaad.org/media/archive_detail. php?id=284.
111. Human RIGHts camPaIGn, 2005 annual RePoRt 15 (2005), available at http://www.hrc. org/documents/AR_2005.pdf.
112. Human Rights Campaign, The New Voting Bloc on the Block, 7 Gay & lesbIan Rev. woRldwIde 35 (Spring 2000).
113. Human RIGHts camPaIGn, supra note 111. See Violent Crime Control and Law Enforcement Act, Pub. L. No. 103–322, § 281003, 108 Stat. 2096 (13 Sep. 1994).
114. See H.R. 2692, S. 1284, 107th Cong., § 4 (1992), available at http://thomas.loc.gov/cgi- bin/bdquery/z?d107:SN01284:@@@D&summ2=m&. See also S. REP. 107–341, Employ- ment Non-Discrimination Act of 2001, Report to accompany S. 1284 (15 Nov. 2002).
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rights organization in the United States that works for gay, lesbian, bisexual, and transgender equality.
The third-largest gay and lesbian organization in the United States today, the Gay and Lesbian Victory Fund (GLVF), founded in 1991, focused entirely on encouraging gays and lesbians to run for political office. Since its found- ing, GLVF has contributed $2.5 million, through its PAC, to gay-friendly, gay, and lesbian political candidates.115 By 1994, “there were more than 150 gay people holding public office nationwide, either through appointment or direct election.”116 In 2000, the GLVF actively supported thirty-four candidates in sixteen states; in 2004, the organization supported and funded sixty-four candidates for political offices in twenty-seven states and more than forty were elected.117 Although each year the GLVF supports a relatively small number of political candidates, its strategies and efforts have raised aware- ness and helped many of their candidates win elections.
Not all LGBT political organizing in the 1990s was of a liberal orienta- tion.118 One LGBT activist group, the Log Cabin Republicans (LCR), although founded in the 1970s, worked substantially within the anti-gay political stronghold of the Republican Party in the 1990s. Advocating “low taxes, limited government, strong defense, free markets, personal responsibility, and individual liberty,” LCR also insists that “all Americans have the right to liberty, freedom, and equality. Log Cabin stands up against those who preach hatred and intolerance. We stand up for the idea that all Americans deserve to be treated equal-regardless of their sexual orientation.”119 Thus, draped in the mantle of republicanism, LCR has taken influential positions on every- thing from the nomination of judges to the US Supreme Court to the freedom of lesbians and gays to serve in the US military. In each election, LCR has supported Republican candidates deemed to be “fair-minded friends,” such as Senator John McCain (R-AZ).120 The president of LCR, Patrick Guerriero, defended his organization from criticism within the Republican Party:
115. Bruce Mirken, Vote For Me, I’m Gay, motHeR Jones, 31 Oct. 2000, available at http://www. motherjones.com/news/feature/2000/10/victoryfund.html.
116. out In all dIRectIons: tHe almanac oF Gay and lesbIan ameRIca 9 (Lynn Witt, Sherry Thomas & Eric Marcus eds., 1995).
117. Ellen Wright, Lesbian and Gay Candidates Win Elected Office Across the Country, 30 lesbIan news 16 (Dec. 2004).
118. See Troy D. Perry, Why I Believe in Marriage Equality, san dIeGo unIon-tRIbune, 14 Mar. 2004, available at http://www.signonsandiego.com/uniontrib/20040314/news_mz- 1e14perry.html.
119. Log Cabin Republicans, What We Believe, About Log Cabin (2004), available at http:// www.logcabin.org/logcabin/about.html.
120. Press Release, Log Cabin Republicans, Log Cabin Republicans Announce 2004 Endorse- ments (25 Oct. 2004), available at http://online.logcabin.org/news_views/press_102504. html.
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[T]he reality is that 50 years from now, historians are going to look back at this moment and ask, what did the leadership of LGBT organizations do? What did individuals do? And shame on Log Cabin if it doesn’t speak out against bigotry and intolerance within our own party, and shame on us if we don’t call on our fellow Gay and Lesbian conservatives to find the courage to come out, particularly if they are in positions of power in Washington. . . . If every Gay and Lesbian conservative came out tomorrow morning, the road to full equality would be a very short one. It would be over in two to five years. If that doesn’t happen, it’s more likely going to be 15 to 20 years.121
Mainstream American politics—in both the Republican and Democratic Parties—has turned out to be less permeable than many LGBT activist groups had hoped. Some LGBT activist groups lament that despite their “lobbying efforts . . . to offer support to politicians in both major parties, [the latter] are more than ready to betray LGBT rights when it is politically expedi- ent.”122 Nonetheless, the struggle for LGBT inclusion in existing political establishments continues to be the most dominant strategy in domestic LGBT organizing.
(2) Utilizing legal institutions
A second strategy in the 1990s called for LGBT equality in all institutions of American life.123 One focal point of these activities was removing the ban against open homosexuality in the US military. Gay, Lesbian, and Bisexual Veterans of America (GLBVA) (since renamed American Veterans for Equal Rights) actively challenged the “Don’t Ask, Don’t Tell, Don’t Pursue” policy that was agreed upon by President Clinton and the US military. The policy, although politically expedient, quickly became seen as a highly flawed and unsatisfying compromise. In 1997, GLBVA issued its “Lexington Declara- tion” to President Clinton and Congress, in which GLBVA criticized the US military for its “discrimination, maltreatment and continuing government sanctioned witch hunts,”124 despite the 1993 adoption of the Don’t Ask, Don’t Tell, Don’t Pursue policy. Servicemembers Legal Defense Network (SLDN), an organization providing legal representation to LGBT servicemembers and a leading advocate of full integration of LGBT citizens in the US armed forces, documented for 1997 a 27 percent increase in command violations
121. Rex Wockner, Interview with Log Cabin Republicans President Patrick Guerriero, seattle Gay news, 9 Dec. 2005, available at http://www.sgn.org/sgnnews49/page2.cfm.
122. Ty Moore, Gay-Bashing Still Legit in DC, Justice #35 (June–August 2003), available at http://www.socialistalternative.org/literature/womensrights/santorum.html.
123. Liz Highleyman, Peace Activism and GLBT Rights, 11 Gay & lesbIan Rev. woRldwIde 22, 24 (September–October 2004).
124. Press Release, Gay, Lesbian & Bisexual Veterans of America, Inc. (GLBVA), Gay, Lesbian & Bisexual Veterans of America, Inc. Release “Lexington Declaration” (20 Mar. 1997), available at http://www.aver.us/pressrls/97-05.htm.
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of the Don’t Ask, Don’t Tell, Don’t Pursue policy and a 38 percent increase in incidents of anti-gay violence, in all arms of the military, including death threats and physical assaults.125 Throughout the remainder of the decade and into the beginning of the new millennium, GLBVA relied upon lobbying and public awareness campaigns (usually in the form of press releases and reports) to highlight the ineffectiveness of the Don’t Ask, Don’t Tell, Don’t Pursue policy.
Another development within LGBT movements was an increasing will- ingness to pursue their objectives through the US judicial system. In the 1990s, LGBT Americans filed countless petitions in local, state, and federal courts as a means to assert their civil and political rights. Several court deci- sions proved to be highly relevant to the status and rights of LGBT citizens. One LGBT organization that carried out prominent legal work during this era was Lambda Legal Defense and Education Fund (now Lambda Legal), originally founded in 1986. Lambda Legal pursued test cases “selected for the likelihood of their success in establishing positive legal precedents that [would] affect lesbians, gay men, bisexuals, transgender people and those with HIV.”126 The United States Supreme Court in 1986 upheld Georgia’s anti-sodomy law in Bowers v. Hardwick, finding that nothing in the Constitu- tion “would extend a fundamental right to homosexuals to engage in acts of consensual sodomy.”127 Nevertheless, over the next decade, Lambda Legal persuaded state courts in Kentucky, Tennessee, Montana, and even Georgia to strike down anti-sodomy laws and in 2003 convinced the US Supreme Court to declare these prohibitions unconstitutional.128 In 1996, at the urging of Lambda Legal, the First Circuit Court of Hawaii found that the state did not meet its burden of proof in asserting that allowing same-sex marriage would be harmful to children, families, or any other important public or governmental interest.129
That same year, Lambda Legal, working with the ACLU and the Colo- rado Legal Initiatives Project, petitioned the US Supreme Court to rule on a
125. Michelle Benecke & Dixon Osburn, Servicemembers Legal Defense Network, Conduct Unbecoming: The 4th Annual Report on “Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass,” available at http://www.sldn.org/templates/dadt/record.html?section=22&recor d=167.
126. Lambda Legal Defense and Education Fund, About Lambda Legal (cir. 1997) (on file with author).
127. Bowers v. Hardwick, 478 U.S. 186, 192 (1986), available at http://www.sodomylaws. org/bowers/bowers_v_hardwick.htm.
128. Lambda Legal Defense and Education Fund, Strength, Strategy, Success: Shaping the Future Since 1973 (5 Feb. 2003) (on file with author). See also Lambda Legal, History, available at http://www.lambdalegal.org/about-us/history.html; Lawrence v. Texas, 539 U.S. 558 (2003).
129. Baehr v. Anderson, Civil Case No. 91–1394, 1st Cir. Ct., State of Hawaii (1996), avail- able at http://www.buddybuddy.com/finding1.html. But see Baehr v. Miike, 1999 Haw. LEXIS 391 (Haw. 1999).
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Colorado state amendment that would have prevented any state legislation protecting homosexual citizens from discrimination based on sexual orienta- tion. The Supreme Court ruled against this amendment, citing the Fourteenth Amendment to the US Constitution.130 Gay & Lesbian Advocates & Defenders (GLAD), originally founded in 1978 as a non-profit legal rights organization dedicated to ending discrimination based on sexual orientation, HIV status, or gender identity, also made legal advances for the LGBT community by working within the judicial system. In 1998, GLAD appeared before the US Supreme Court in Bragdon v. Abbott, successfully arguing that all people with HIV are covered by the Americans with Disabilities Act, whether or not they show visible symptoms.131
Not all legal attempts by LGBT citizens or organizations were victorious, however, and the future appears stormy. In August 2004, the Supreme Court of Massachusetts, a state known for its progressive policies and legislation, ruled that after a same-sex couple’s breakup, the non-biological partner did not have an obligation to support the child, even though the court acknowl- edged that she intentionally and purposefully acted to bring the child into the world.132 And in April of the same year, the Oregon Supreme Court ruled that all 3,000 gay marriages that were performed over the previous year in one county were “null and void.”133 Early in 2006, Florida state legislators and anti-gay groups proposed a state constitutional amendment (that the latter has vowed to place on the 2008 presidential ballot) to ban equal mar- riage rights, permanently block civil unions, and threaten existing domestic partnership protections.134 The danger of bad law being made through the courts perhaps has never been greater for LGBT activists than it is in the United States today. Nonetheless, the assimilation-oriented strategy of litiga- tion continues to play a prominent role in domestic LGBT organizing.
IV. CoNCLUSIoN: MoRE QUESTIoNS THAN ExpLANATIoNS
LGBT advocates have met considerable success in gaining entry to interna- tional human rights organizations. Human rights framings, however, have not
130. Romer v. Evans, 517 U.S. 620, 635–36 (1996). 131. Bragdon v. Abbott, 524 U.S. 624, 628, 656 (1998). See also Brief for Respondent Sidney
Abbott, 1997 WL 47514 (U.S.) (6 Feb. 1998). 132. Press Release, Gay & Lesbian Advocates & Defenders (GLAD), GLAD Disappointed
in Today’s Split SJC Ruling that Lesbian Who Agreed to Have Child with Her Partner Has No Obligation to Pay Child Support (25 Aug. 2004), available at http://www.glad. org/News_Room/press81-8-25-04.html.
133. Sarah Kershaw, Oregon’s Supreme Court Rules Gay Marriages Null and Void, n.y. tImes, 14 Apr. 2005.
134. Press Release, American Civil Liberties Union of Florida, Anti-Gay Proposed Constitutional Amendment Argument before Florida Supreme Court (2006), available at http://www. aclufl.org/news_events/?action=viewRelease&emailAlertID=1661.
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found their way to the forefront of LGBT domestic strategies in the United States, which remain assimilation-oriented and informed by a civil rights model. Perhaps the best explanation for this outcome is simply that domestic advocates are following a model that has been successful for other identity groups in the United States, that is the civil rights model. Additionally, for many Western social change advocates, such as those in the United States, human rights issues often are associated with gross human rights violations committed against faraway victims. With domestic courts and other domestic rights-promotion institutions and mechanisms unreceptive to human rights frameworks, and disclosing in many instances a cultural resistance to in- ternational law more generally, a change in this thinking is unlikely to be forthcoming in the near future.
Another possible explanation for the failure of human rights-based claims to fully permeate domestic advocacy is the strategy and process through which human rights claims usually are advanced. The attempt to frame LGBT concerns in human rights terms largely has centered on sexual identity categories, without reflecting the self-critique of identity within LGBT communities that reveals LGBT categories as socially constructed and contested.135 As one legal scholar noted, “this can be problematic, as it redefines existing identity categories and may also reflect culturally specific understandings of sexuality.”136 For those on the receiving end, this may be extremely repressive. As Frank Browning observed, “A system of gay-identity politics may well sweep the world, like so much of Western commercial culture, but it may also prove as repressive and imperial as the old bigotries already in place.”137 Accepting that gender and sexuality are socially constructed and fluid would challenge the identity-politics model that has long been a foundation of human rights activism.
Fitting the claims of aggrieved groups into “essential identities” serves human rights frameworks structured along these lines and the political agendas of assimilation strategies. Yet traditional human rights framings do not accommodate alternative streams in contemporary LGBT politics, which challenge all forms of essentialism and seek to build identities and cultures wholly different and apart from existing institutions. The human rights model appeals to the vast center of LGBT movements, which channel their efforts through existing political institutions and patterns of discourse, but not to the more radical elements, on both the right and the left, which use new rhetoric to press for new priorities in re-imagined political and social landscapes.
135. See Donald Morton, The Politics of Queer Theory in the (Post)Modern Moment, Gen- deRs 121 (Fall 1993); JudItH butleR, GendeR tRouble: FemInIsm and tHe subveRsIon oF IdentIty (1990).
136. See Kristen L. Walker, Evolving Human Rights Norms Around Sexuality, 6 Ilsa J. Int’l & comP. l. 343, 348 (2000).
137. FRanK bRownInG, a QueeR GeoGRaPHy: JouRneys towaRd a sexual selF 28 (rev. ed. 1998).
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Throughout the world, many sexual minorities simply do not view their identities in terms of the hetero/homo dichotomy, and rather present a wide variety of sexual identities unrecognizable in the west. For them, the globally transplanted “ideas of ‘gay liberation’ serve ‘not as emancipatory slogans’ but impose external categories onto widely divergent peoples, thus obscuring the inherent value of fluidity and deliberation in sexual identity.”138 In these places where the notion of “sexual orientation” and fixed sexual categories do not exist, LGBT advocates already have focused on sexual rights, as a matter of pragmatics. After all, LGBT victims of state-committed or state-condoned violence are abused because of social hostility toward their behaviors, not due to their membership in taboo identity groups that do not even exist in their cultures.
Many LGBT activists do not seek to spotlight the boundaries that distinguish gay from straight.139 Instead, as this essay explains, the majority strategically stress that “gays and lesbians are as ‘normal’ as heterosexuals and deserve acceptance precisely because they are like everyone else.”140 A focus on “sex” rather than on “sexual orientation” challenges this strategy at its core. Not only does a “sexual rights” approach accept that gays and lesbians are different, but it also demands the end of state-condoned denial of their difference.
To the extent that domestic LGBT activists may want to frame their con- cerns in human rights terms, the notion of “sexual rights as human rights” could perhaps advance their cause more than “gay and lesbian rights as hu- man rights.” However, in the human rights infrastructure, “sexual rights” has proven to be a hard sell.141 Perhaps the direct use of the s-term is frightening to international human rights organizations and LGBT activists alike, conjuring up images of taboo sex practices, and pressing the outer limits of movements that are assimilationist at their cores. Yet campaigns for “sexual rights” ulti- mately may prove more successful than existing LGBT rights strategies. Such campaigns would focus on the behaviors that are being punished, prohibited, or otherwise limited (for example, the right to marry or partner with an adult of one’s own choosing) rather than on identity categories of “homosexual,” “gay,” “lesbian,” “transgendered.” This is appealing because categories may be contested, but behaviors are more clearly identifiable. This might be ac- ceptable for those who seek entry to and acceptance in the existing political and economic order.142 But participation in the status quo can go only so far for those who seek radical transformations of the social construction of sexuality and gender and of patterns of oppression in general.143
138. Sonia Katyal, Exporting Identity, 14 yale J. l. & FemInIsm 97, 175 (2002). 139. davId m. RaysIde, on tHe FRInGe: Gays and lesbIans In PolItIcs 5 (1988). 140. Id. 141. Petchesky, supra note 24, at 120. 142. vaId, supra note 101, at 236–37. 143. Id.