General Assembly votes to drop Sexual Orientation from "Right to Life" resolution

Ken Burch wrote:

[...]

Remember, "The West" has only become gay-friendly(and barely gay-friendly at that) in the last twenty years or so, and only because of the work of people who supported the anti-colonial and antiracist movements.  We've little right to claim superiority on this.

Ah fuck it, might as well get nasty.

Heaven forbid that Kurt Hiller was right and our liberation has anything to do with our own efforts. Ken, would you care to come up with a comprehensive list of who we should be sending thank-you notes to?

Or is this all some personal vendetta you have with Snert that you think justifies such an over-the-top statement?

Well (at more than the risk of being accused of shadow moderating... because it is my intention to be actively shadow monitoring) go back and look at the latest exchange, then look at the little tag line that is attached to the forum description itself "Discuss all issues LGBTQ from an LGBTQ-positive perspective" and then come back and enlighten me how your posts, snerts (or the post that, after reading, it took me a week to cool down enough to respond to in anything approaching a civil manner) come even close to expressing that mandate.

Or stay away, that works for me too.

[ETA... and going back in after a post has been made and editing by means of adding (without indicating that you have in fact done so [(that cute little ETA tag, like I am adding here)] the line ", and only because of the heroic work of the LGBT community itself," is better described as covering your ass than addressing the problem. - As an aside, when did our enlightened self-interest become heroic? Talk about hackneyed phrasing...]

I [b][i]think[/i][/b] I have cooled down enough over the past several days to write a response to post #6 in this thread that is at least moderately civil... well, here is hoping I don't cross the line into "nasty".

I will be quoting quite extensively from that post itself, and also from an analysis of the implications under International Law of this amendment by the group UK Human Rights Blog (UKHRB) - the full analysis can be accessed here.

But let's turn our attention to post #6, shall we:

M. Spector wrote:

I won't comment on the motivations for the amendment, because I don't know what they are. I saw a suggestion somewhere that there is no agreed international definition of what "sexual orientation" means, but I don't even know if that's true. And it's arguable that replacing "any discriminatory reason, including sexual orientation" with "discriminatory reasons on any basis" actually makes the declaration more inclusive, not less.

I think any claim to not know, or be confused about, the motivations behind the amendment can only be based on a wilful blindness. One need look no further than the statements made by those advancing the amendment to have a pretty clear insight as to their motivations:

Representative from Benin on behalf of the African Group wrote:

"sexual orientation had no legal foundation in any international human rights instruments and there was no legal justification to highlight it."

and

Representative from Morocco on behalf of the Organization of the Islamic Conference wrote:

"the Group was seriously concerned by controversial and undefined notions that had no foundation in international human rights instruments. Intolerance and discrimination existed in cases of colour, race, gender and religion, to mention only a few ... An attempt to create new rights was a matter of concern for the Group."

It is quite clear that the proponents of the amendment were motivated by a desire to see that any reference to sexual orientation be removed in order that no rights "as a class" be extended to the LGBT communities. If the existence of such a class is itself not recognized in law, then actions against such a class are essentially "invisible" and can't be characterized as discriminatory, because the law (or declaration) no longer has the necessary reference point to describe those who are actually being discriminated against. The proponents of the amendment are trying to shield themselves from international criticism for engaging in the very type of behaviour that the resolution itself is trying to condemn.

So long as there is no recognition that the members of the LGBT communites are part of a "class", the argument can be made (and has been made, and continues to be made) that actions taken against individuals from these communites are not discriminatory per se, but rather the consequences of criminal behaviour on the part of these individuals. (Amensty International used to tie itself into knots over this question, refusing to declare imprisoned gays or lesbian individuals "prisoners of conscience" even in those circumstances where action was taken against these individuals because of advocacy of equal rights for their community, because the states imprisoning them could point to the fig leaf of the charges under which "individual" gay or lesbians prisoners were being jailed.)

Any argument that the generalized "discriminatory reasons on any basis" is somehow "more inclusive" founders on the same rock that we see in discussions about human rights in the United States (where reactionary forces are always saying "no special rights are required, this is all covered by the equal protection clause of the 14th Amendment") - it founders because it runs into the "strict constructionists" who continually assert that what is not specifically spelled out is necessarily excluded. To suggest that international law does not suffer from the same contraint goes beyond being naive, it actively plays into the hands of those who seek to maintain the discriminatory status quo. Refusal to acknowledge the existence of a suspect class (which is essentialy what the amendment does) is the major roadblock in addressing the systemic discrimination individuals who are members of this class experience.

You need only look at the domestic example of the Vriend v. Alberta challenge to see how the logic of the law works. The challenge in Vriend was (in the words of Justice Russel): "The test was whether homosexuals as a group constituted a discrete and insular minority which had historically suffered discrimination, prejudice or stereotyping by virtue of a personal characteristic." and her finding was "[that] The discrimination against homosexuals is an historical, universal, notorious and indisputable social reality". It is important to remember that her decision was initially overturned by the Court of Appeal on the basis that she was "reading in" something that was not explicitly spelled out in the Act in question, and that doing so was incorrect because the existing Act was sufficiently "neutral" (general) and that there had been no constraint preventing the electorate from electing new representatives to reword the Act had there been sufficently widespread interest in doing so. Fortunately the Court of Appeal was overruled by the SCC, but it is vital to be aware that "constructionist" arguments are not solely an obstacle in the United States, they are here too (like the Court of Appeal), and they most definitely exist in the international arena.

I find it puzzling that post #6 never addresses why the reference to sexual orientation was even in the resolution in the first place, surely this would give me some pause before making a lengthy post that was essentially defending those who were seeking to remove it. As reported in the piece by UKHRB:

UKHRB wrote:

The reference to sexual orientation had been included in the resolution since 1999, based on the repeated and express concern of the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions for lesbian, gay, bisexual and transgender people as victims of such crimes - a concern that persists in his most recent report.

[emphasis added]

One might also consider the response of the International Gay and Lesbian Human Rights Commission (IGLHRC) to the amendment and the vote:

IGLHRC wrote:

This vote is a dangerous and disturbing development ... it essentially removes the important recognition of the particular vulnerability faced by lesbian, gay, bisexual and transgender people - a recognition that is crucial at a time when 76 countries around the world criminalize homosexuality, five consider it a capital crime, and countries like Uganda are considering adding the death penalty to their laws criminalizing homosexuality.

As the UK Human Rights Blog goes on to point out:

UKHRB wrote:

No amendment was proposed to generalise the specific references in paragraph 6 (b) to killings targeted at racial, national, ethnic, religious or linguistic minorities; street children; human rights defenders including lawyers, journalists and demonstrators; refugees; migrants or indigenous people. Only the reference to sexual orientation was deleted.

[emphasis added]

And yet the poster, having announced that he won't comment on the motivations behind the amendment because he doen't know (and apparently didn't bother to find out) what they were, alludes to the possibility that there may be some confusion over the definition of what the designation "sexual orientation" actually represents (but isn't sure if that is a problem or not), and suggests that it might be "arguable" that removing a specific reason (leaving all other specified reasons untouched) is somehow more "inclusive" can go on to make the outrageous assertion:

M. Spector wrote:

But I will comment on the effect of the amendment upon the resolution as a whole, which is to say, [b]none at all[/b].

WTF? After attempting to avoid any burden of examining the motivations behind the amendment, having provided no background history on the fight to get sexual orientation recognized (here in Canada, in other countries, or internationally), having failed to say anything about the current (and escalating) violence against LGBT communities internationally (the existence of this violence and the fact that is escalating is something that I will, to steal a phrase from Justice Russel, assert is "a notorious and indisputable social reality"), the poster is going to blandly assert that the effect of removing one of the few explicit references to the LGBT communities in the international discourse is essentially "nothing at all" (and then have someone chime in with "That was my initial non-expert opinion as well - thanks for making it explicit.") leaves me getting up from my desk, walking back and forth in the hallway saying "WTF, WTF, WTF, WTF, WTF IS WRONG WITH YOU PEOPLE".

What part about the equation that (explicitly) acknowledging the existence of a suspect class is a prerequisite to taking necessary actions to prevent discrimination (up to and including, in the matter of the resolution this is all in reference to, the extra-judicial killing of) the suspect class is so bloody hard to understand? How can anyone assert that removing any reference to sexual orientation from this resolution is anything other than a transparent attempt to avoid international criticism for either actively oppressing or failing to protect a vulnerable class within the borders of a state actor?

M. Spector wrote:

Rather than relying on the bourgeois, agenda-driven news media to explain things for me, I decided to take a look at the actual resolution and the actual amendment in question. And when I did, it was clear that the resolution as amended does not in any way countenance the "extra-judicial, summary, or arbitrary execution" (which is what the subject of the resolution was) of GLBTQ+++ people or anyone else. In fact, if the object of Morocco and Mali in moving the amendment was to exempt this class of persons from the UN's prohibition on extra-judicial, summary, or arbitrary executions, then they failed miserably.

[Because of intermittent problems with the link provided to the resolution in post #6, I have copied the relevant paragraph of that resolution being discussed below - strike through indicates wording removed by the amendment, and bold indicates the replacement wording. The text of the full resolution [i]should[/i] be accessible at: A/C.3/65/L.29/Rev.1, but please be aware it is a two step link, you will be shown a bar where you must pick which language you wish to see the text in, rather than being linked directly to the PDF of English language version directly]

Quote:

(b) To ensure the effective protection of the right to life of all persons under their jurisdiction and to investigate promptly and thoroughly all killings, including those targeted at specific groups of persons, such as racially motivated violence leading to the death of the victim, killings of persons belonging to national or ethnic, religious and linguistic minorities, killings of persons affected by terrorism or hostage-taking or living under foreign occupation, killings of refugees, internally displaced persons, migrants, street children or members of indigenous communities, killings of persons for reasons related to their activities as human rights defenders, lawyers, journalists or demonstrators, killings committed in the name of passion or in the name of honour, all killings committed for [s]any discriminatory reason, including sexual orientation[/s] [b]discriminatory reasons on any basis[/b], as well as all other cases where a person's right to life has been violated, and to bring those responsible to justice before a competent, independent and impartial judiciary at the national or, where appropriate, international level, and to ensure that such killings, including those committed by security forces, police and law enforcement agents, paramilitary groups or private forces, are neither condoned nor sanctioned by State officials or personnel;

Well it all hinges on how we are going to consider the word countenance, doesn't it? If we are taking countenance to be strictly synonymous with "extending approval" the poster is correct in his assertions. If, however, we take the time consider the guiding maxim in the legal system most of us are familiar with Qui tacet consentiret (literally, silence gives consent) removing reference to the suspect class is in fact forcing silence, and therefore is consenting or countenancing, turning a blind eye towards, tolerating, and ultimately even tacitly approving. Again, since the motivation by the proponents is pretty clearly avoiding international criticisms for their actions, I think it is more likely that the poster is incorrect in his assertions. It is important to remember, this is not a case of having failed to include in the first place, this is a case of actively excluding, or intentionally removing reference. Again, it is vital to pay attention to the fact that "sexual orientation" is the sole focus of the amendment, and the only class among a long list of specific groups, that explicit reference to was removed.

I do find the descriptor "the bourgeois, agenda-driven media" somewhat curious. As I will spell out a bit later in my post, despite assertions to the contrary by the poster of post #6, the MSM has essentially buried and ignored this story, but his reference is to the "bourgeois, agenda-driven media... whatever can he mean?

Where the story has been covered is in the LGBT media - not only in North America and Europe, but world-wide, I guess that covers the "agenda-driven" part of the descriptor. What am I to make of the "bourgeois part"? I have a few problems with the language being employed, in no small part, because of the cross-linking of this thread with the Cuban Prison Hunger Striker Orlando Zapata Tamayo ... was an ordinary criminal thread. Given the history of many self-identified "Marxist" states and political parties attempting to justify their ideological musings and outright repression of LGBT individuals and communities on the basis of the "Stalinist" assertion that "homosexuality was a sign of the degeneracy of the [fascist] bourgeoisie" -- in my experience, usually shorthanded to "homosexuality is a symptom of of bourgeois decadence" by the self-identified "Marxist" parties domestically [CPC, CPC(M-L), WCP] -- I find the choice of terminology at best troubling, at worst outright offensive. Is the use of "bourgeois" intended as merely a mild pejorative (as it is often used in lefty circles, I know I use it myself that way) or is it used in the stronger, essentially Stalinist sense? In either case, I would be interested in seeing an explanation of why it is being used in particular reference to the LGBT media.

M. Spector wrote:

The amended resolution is still plenty broad enough to prohibit such executions of any persons on account of their sexual orientation. This is not, as the bourgeois media tried to portray it, the removal of sexual orientation from a definitive list of protected categories, such as you would find in the anti-discrimination provisions of most human rights codes. In the case of the latter, if you're not specifically listed, then you're not protected. But in the case of the UN resolution, that is not the effect of the amendment at all. You really should read the whole thing.

I find that the author of post #6 is displaying a fundamental misunderstanding of the import of General Assembly resolutions (and yes I have read "the whole thing"). And while I agree there is a distinction to to be made between UN Resolutions and human rights codes in varying jurisdictions, that distinction has to do with whether or not it is binding and enforceable. The equation regarding identification of the suspect class and the applicability of anti- discrimination clauses still holds.

Earlier in post #6 it was asserted "the effect of the amendment upon the resolution as a whole, which is to say, [b]none at all[/b]" and yet here it is maintained that "[t]he amended resolution is still plenty broad enough to prohibit such executions". To put it bluntly, the resolution (amended or not) prohibits nothing... General Assembly resolutions are not not considered "binding" on members. No individual or state actor can actually "take another to court" because the second state actor has acted contrary to a General Assembly resolution. They are, essentially, statements of intent. A treaty might prohibit, a convention might prohibit, a General Assembly resolution, not so much. Where they are important is when they are referred to in circumstances where there are binding agreements between states. The concluding paragaph of the UKHRB analysis spells this out quite well:

UKHRB wrote:

Although the UN General Assembly lacks formal legislative authority and resolutions are generally held to be non-binding on member states, [b] the International Court of Justice has considered such resolutions, whilst being recommendatory in nature, capable of having legal significance as being reflective of customary international law[/b].

[emphasis added]

M. Spector wrote:

While we're all being shocked and appalled, we might also wonder why the United States abstained on passing the amended resolution. The vote on the amendment was widely reported in the MSM, but very few of them reported that the amended resolution was passed on a vote of [url=http://www.un.org/en/ga/third/65/docs/voting_sheets/L.29Rev.1.pdf]165-0, with 10 abstentions[/url], including the United States, Zimbabwe, Turkey, Sudan, Sri Lanka - Israel, of course - Libya, Tuvalu, and other beacons of human rights and liberty. Nah, no news story there!

I am beyond puzzled about the reference "[t]he vote on the amendment was widely reported in the MSM", and would really like to see such an assertion documented. Personally, after having done the prerequisite "googling" of the topic in general, I have found that using the search engines on CTV, CNN, CBC, The Globe and Mail, etc. (using the search parameters of "United Nations" and "Sexual Orientation") results in a short Reuters item, and a sidebar comment on CBC in a story talking about the particular situation in Uganda. Searching the BBC site does actual provides a hit, albeit to a linked blog under the section "Ethics, Religion". If this qualifies as "being widely reported in the MSM", it boggles my mind to try and determine what would be considered "buried" or "ignored".

While I can (and did in my OP) link to reporting in the LGBT media in Canada, the U.S. and the U.K., and after relatively extensive searching, can find references out of Trinidad, Kenya and South Africa (two from South Africa actually, here and here), and while I do remember seeing a brief piece on a site from an English-language newspaper site from India (afraid I lost the url so I can't link), I am not finding much in what I consider the MSM. Maybe the poster is referring to non-English language coverage, which I must admit I am not well qualified to search. If the commercial, main stream media in the French speaking, Spanish speaking, Arabic speaking (well you get the idea) world are profiling this I would be most interested in hearing about it, could be a lively discussion of why only the anglosphere is avoiding the topic if that is the case. Or maybe not.

As to who voted which way on the final (post amendment) version of the resolution. My what lovely fish is being displayed. Herring, isn't it?

Frankly here, within the confines of the LGBT forum, irrelevant attempts (even subtle ones like the "Israel, of course") to valorize or villify any particular state actor amount to an insult to the mandate of the particular forum. I am quite aware that there are many state actors deserving either valourization or villification on any number of issues - and even those actors who have done something that most of us would consider positive are almost always wide open to accusations of hypocrisy, often on exactly the same issue. But unless there is a clear connection drawn to the issue which may be at hand, and within this particular forum, phrased in such a way as to address the mandate of the forum, post and comments whose primary purpose is to continue to play the valourize/villify game are really just a rude distraction. I may have read too much into the interconnectedness between this thread and the one on the Cuban prisoner and am being hypersensitive to some of the terminology being employed. Yeah, it could be the case. But I feel there are enough precedents, mostly in the way the QUAIA related threads within this past spring, turned into a valourize/villify free for all over Israel, for me to indulge myself, at least to point of suggesting it is more appropriate for that little game to play itself out in the thread in which it started.

[late addition - November 30 update... oh, there is a new reference to the story today that can be found, should be particularly interesting to those who want to valorize or villify state actors, of course they may wish to characterize it as a a bourgeois adgenda-driven piece, but they have that freedom, don't they.]

[ETA - I have gone in and corrected a typo, I am sure there are more lurking (it is kind of a long post) and I may do this (correcting) again, but I will clearly identify any substantial change or addition]

It is a little troubling to see the characterization of this motion presented in Sasha Van Bon Bon's column today (linked on the rabble front page) where she writes:

Quote:

This past week a group of Arab and African nations succeeded in getting a resolution that condemns executions based on sexual orientation deleted from a list that includes "killings for racial, national, ethnic, religious or linguistic reasons and killings of refugees, indigenous people and other groups".

[emphasis added]

While I realize that her column is not usually directed towards international affairs, I think there should have been some attention paid to nuances. When speaking to the amendment, it was quite clear that proponents were claiming to speak representing the views of (the majority at least) of the UN's African regional grouping (although close to a third of the states in that grouping [16 of 53 by my count] either abstained or choose to be absent during the vote) or on behalf of the Organization of the Islamic Conference (with several notable absences to be taken into account).