Aug 24 2015

Micro-movement and the memory of slavery

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Ethan Geringer-Sameth is a student in the MSc Human Rights Programme at LSE and an alumnus of the African and Afro-American Studies Department at Brandeis University.

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Julian Bond speaking at a Black History Month event in 1984 (image: State Archives of Florida)

The obituary of Julian Bond – the activist who became well-known during the 1960s Civil Rights Movement – elicited a strong response from many readers upon its publication in the New York Times last week for identifying his great-grandmother as “a slave mistress of a Kentucky farmer”.

What is so offensive about this phrase is the word “mistress”, which obfuscates the brutal coercion and sexual abuse that served as a cornerstone of the atrocity of slavery. Instead it casts the experience of slavery as one of consent and independence, reconciling it with the ideology on which the United States was founded. The word undermines one of the substantive hopes of reflecting on slavery: the recognition of the injustices that reigned during the New World’s most formative years, as well as their deep-seeded consequences in the present. It represents the power of articulating injustice – or failing to do so.

The language of the New York Times obituary is an example of a micro-aggression, a category of speech or action which has become increasingly identified in mainstream discourses. What makes it “micro” is that it is common, every-day and assaults the sensibilities and social standing of those affected by broad axes of oppression, like racism and sexism. Inasmuch as a micro-aggression is the manifestation of the power of a privileged group transmitted through an individual, it points to the fact that any individual, even the most oppressed person, even an enslaved person centuries ago and today, may speak and act in order to signify meaning. It points to the agency that can be derived from living and surviving.

This conception of the “micro” also complicates the assertion that being enslaved in America meant being socially dead, a passive object – an assertion whose derivatives, today, suggest that the legacies of slavery are part of a forward development out of bondage, and that it is the responsibility of disparaged black Americans to fulfil the liberal promise and free themselves from the margins.

This reflection on representing the past coincides with the International Day for the Remembrance of the Slave Trade and its Abolition (August 23), a day designated by UNESCO to commemorate the memory of enslaved people and to promote international solidarity towards the amelioration of its legacy. It also links to another meditation on memory, representation, and solidarity.

I recently flew from New York to London on a jumbo jet operated by Air France. I understood very little of the French in-flight instructions, but one word I recognised repeatedly: décalage, which means a gap or a lapse. In the context of the flight I think it must have referred to the time lag between the continents or the tearing of the plane from the ground.

For me, it harkened back to a quote I had read of Léopold Senghor’s, the cultural theorist and first President of Senegal, speaking on the differences between black Americans and Africans: “a simple décalage – in time and in space.” Senghor seems to be using décalage as a way of identifying the simplified modus operandi of the African diaspora and to locate a basis for black internationalism. The literary theorist Brent Edwards proposes that we read décalage not to suggest a prior cohesion, but to represent the removal of something already superimposed. This ‘something’ is the racial construct, which asks black peoples to translate across their differences. As a model for understanding race, Edwards writes, décalage accounts for the inarticulable differences that would allow black internationalist movement.

If we think of these differences as constituted of the most local experiences that render us unique agents capable of individual sovereignty, then they account for the flexibility necessary in any social movement, as well as the idiosyncrasies that render the movement’s meaning at the community and individual level. The overlapping and diverging paths of people is what engenders the possibility of cohesion and advancement. It also destabilises the notion that the practice of slavery could ever make a slave out of an enslaved person. While we recognise the near-absolute oppression of slavery in order to change the meaning it has in our contemporary lives, let us also be careful to recognise that it was never absolute – that kinship persisted, narratives were written, and on 23 August, 1791, a group of enslaved people resisted their oppressors in Saint-Domingue and invigorated the abolitionist movement.

I submit this piece for publication a day “late” – 24 August – as a kind of micro-resistance to the notion that we can remember and commemorate slavery only at designated moments and only in response to the acts of defiance that made headlines. Sensitivity to the agency as well as the oppression of enslaved people even at the most personal level is key to our collective memory because, finally, our past constrains the meaning of our present.

For more information about International Day for the Remembrance of the Slave Trade and its Abolition, visit the portal on the UNESCO website.

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Jul 31 2015

Oliari v. Italy: a missed opportunity for equality in Strasbourg

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Peter Laverack is a Legal Consultant with the Human Dignity Trust and an LLM (Transnational Law) student at King’s College London.

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Marchers at Milan Pride 2015 say ‘yes’ to same-sex marriage (image: Alessandro Liguori)

Proponents of same-sex marriage must feel like the proverbial person sitting at a bus stop. You wait for ages, then three decisions on same-sex marriage come at once. First there was the overwhelming affirmation of the Irish people to grant their gay brothers and sisters marriage in May, then one month later came the poetically written decision of the US Supreme Court that dignity can be gained only if marriage is available to all. The third instalment came last Tuesday, when the European Court of Human Rights in Strasbourg held that Italy violates the human rights of same-sex couples by its failure to officially recognise their relationships. The upshot of this decision, Oliari v. Italy, is that Italy must pass a civil partnership law, but there is no right to marry for same-sex couples.

While the Strasbourg Court’s decision gives some reason to rejoice for same-sex couples in Italy, and in other European states where same-sex couples are treated as if they are strangers, the decision is a disappointment. The fact that the judgment was framed in terms of a right to material benefits, which are obtainable via civil partnership, was an unimaginative compromise that missed the opportunity to recognise the full equality of lesbian and gay people. The Strasbourg Court determined that a same-sex couple’s right to a family life is breached by the lack of recognition of their relationship, and that civil partnership fixes this problem. Having reached this conclusion, the court felt that there was no need to make a finding on the additional ground of discrimination. The Strasbourg Court has missed an important opportunity, or one might say shirked its responsibility, to declare that LGBT (lesbian, gay, bisexual and transgender) people are fully equal to their heterosexual peers. LGBT people’s rights to family life and private life were established by the Strasbourg Court long ago. Yet, the global debate has moved on to a conversation about dignity and equality, as demonstrated by the US Supreme Court last month in Obergefell v. Hodges. While the Strasbourg Court’s decision is a step forward, its thought process remains in the past. The decision appeals to the lowest common denominator, as it gives the impression that LGBT rights are to be exercised behind closed doors.

More concerning still, the decision to grant civil partnership, as opposed to nothing at all, was premised on the general acceptance of same-sex relationships within Italian society. Those who wish to keep LGBT people in the shadows will no doubt seize upon this. The Strasbourg Court is simply wrong to link rights with acceptance. The rights to family life and privacy and to dignity and equality do not evaporate due to the putative social conservatism of the privileged majority who surround gay men and lesbians. The Strasbourg Court has shown its timidity in this decision. Is the court just following the lead of society, rather than upholding human rights for what they are, namely something that intrinsically attaches to each and every one of us without discrimination?

A court in the UK must soon answer the same question, when Northern Ireland’s courts determine whether to follow other parts of the UK by offering same-sex marriage. That court has a choice to adopt Strasbourg’s approach of side-stepping the issue of equality, or to follow the US Supreme Court – its common law cousin – to recognise that LGBT people are fully equal members of society. Whether full equality requires equal marriage is open to debate, and this debate will continue in legislatures and courtrooms for years to come.

Until the Strasbourg Court recognises that equality is imperative and not optional, LGBT people will continue to petition it. The process could have been shortened via a bolder judgment of the Strasbourg Court, but its judges chose not to take it.

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Jul 22 2015

Protected category or target: the civilian in global conflict and warfare

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Daniel Hye is a MSc Human Rights candidate at LSE with special interest in counter-terrorism and human rights in armed conflict. He holds two Bachelor’s degrees in Political Science and Humanities with research stays at the University of Vienna, Rome and Havana.

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Conditions at Guantánamo Bay illustrate the diminishing protection of the “civilian” under international law

At the beginning of the 20th Century, eight soldiers were killed for every civilian on the battlefield. Just over 100 years later, the ratio has reversed, and eight civilians now perish in war for every solider. This dramatic reversal is even more disturbing considering the normative protections for civilians during times of war contained in the Geneva Conventions.

Fundamental changes in warfare and the global rise of complex civil wars – for instance in Syria, Iraq, South Sudan, Yemen, Libya and Ukraine – have blurred the formerly distinct lines between “lawful“ and “unlawful“ targets. The question of how to define the enemy is now saturated with ambiguity. Empirical evidence shows that modern conflict and especially the “war on terror“ has turned the category of the civilian into an empty shell for those who have been deprived of their right to life, and an excuse for those that act in the name of the lesser evil.

The original use of the term “civilian” dates back to Europe’s colonial enterprise, when the term was applied only to white European civil servants on foreign soil. Only in 1977, with the Additional Protocols of the Geneva Conventions, was a formal definition of the term “civilian” reached. The Additional Protocols define a civilian as any person not part of an armed force or militia. Civilians, so defined, are granted general protection in combat by the Additional Protocols. However, contemporary conflicts often involve actors who do not fulfil the definitional requirements of either combatants or civilians, creating a problematic legal vacuum.

This shortfall in protection under international humanitarian law can be explained by the asymmetry of the actors involved in armed conflict due to differences in their sovereignty, constitution and capacity, the military technology they use and the reach of their actions. This development, as seen in the US-led “war on terror”, as well as in counterinsurgencies in “ungoverned spaces” such as Somalia and Yemen, is accompanied by a civilianization of conflict. Instead of a passive audience hidden behind the curtains of traditional warfare, the civilian has become an active target in a participatory theatre of its most brutal kind. The attempts to redefine the fault-lines of decades-old wars in Africa and the Middle East, where the dividing line between victims and perpetrators cannot be drawn sharply, further consolidates the two normative concepts of universal human rights and state sovereignty into one single contradictory discourse.

The controversy surrounding the expansion of the meaning of “international armed conflict,” advocated by the US, and consequently the applicability of international humanitarian law beyond a defined battlefield, has played out in politics and academia. And so has the dispute over the distinction between those who deserve to be killed and those who do not. The application of extrajudicial killings, racial profiling and indefinite detentions within exceptional juridical spaces, such as Guantánamo Bay, reflect the poor status of the “civilian” who is trapped between the principle of military necessity and the inalienability of basic human rights. The numbers speak for themselves. Between 2006 and 2009 alone, the collateral damage of US drone strikes targeting 14 “terrorist leaders” also killed 700 civilians. During “Operation Enduring Freedom” in Afghanistan 600 communities were exposed to hostilities. A different study on the invasion of Iraq in 2003 suggests that some 655,000 civilians have died as a result of the invasion. The death of those people was balanced against a “greater evil,” raising the question of whether the protection accorded to individuals under humanitarian law is lesser or higher than under human rights law.

The act of balancing military necessity and the basic requirements of human life in armed conflict touches on the question of who in fact should be entitled to define the legitimacy of a target and, consequently, to enact “legitimate” violence. Especially in the context of counterterrorism activities that are justified under humanitarian law, the relevance of either the humanitarian or human rights law framework is determined by which of those two is less of a barrier to military operations. This becomes clearer, for instance, when reflecting on a 2012 speech by John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, in which he claimed that the US was involved in an “armed conflict with Al-Qaida, the Taliban, and associated forces, in response to the 9/11 attacks.”

The increasingly blurred line between civilian and combatant was also evident during Israel’s assault on southern Lebanon in 2006, when Israel’s Minister of Justice concluded that “everyone in southern Lebanon is a terrorist and is connected to Hizbollah.” By instructing the civilian populations to leave their homes and to move to other areas (while not giving any support or incentive other than the threat of being killed) the landscape of southern Lebanon was meant to be rendered empty of civilians. 970,000 people were subsequently displaced by the hostilities.

The instrumentalisation of individuals during times of war has also led to a perception of civilians as illegitimate and suspicious. In Gaza, for example, the entire population was blamed by some for electing Hamas into power, a ridiculous argument considering that as of June 2014 more than 60 per cent of the population was under the age of 24 and, therefore, had not contributed to Hamas’s election. The same argument was made in reference to Afghanistan, where civilians were said to have deserved to lose protection because of their alleged support for the Taliban regime. A reverse version of this view can be found in a statement made in 2005 by Mohammad Sidique Khan, mastermind of the London terrorist attacks. In a video podcast recorded before the attacks he claimed that the civilians in the West were directly responsible of the deaths of Muslims when they supported democratic governments that perpetrated atrocities in the Middle East. Khan applied the very same principle found in Western military discourse: that populations are responsible for the actions of their political elites and representatives.

Counterinsurgency operations within the boundaries of foreign nations (often already deeply affected by crises) not only contribute to the erosion of basic principles of international law – including state sovereignty and non-intervention – but also make it impossible for families of killed civilians to seek redress. The politics surrounding these operations and the overarching counter-terrorism discourse provide opportunities for governments to pose perils to freedom. Autocratic governments like that of Sudan get credit for sharing information with the US on extremists whilst pursuing mass killings in Darfur and committing genocidal actions in South Sudan. Since 2001, the US has killed individuals, including civilians, in Yemen and Somalia without any accountability. These practices stifle the idea of equal civilianhood and result in the further abuse of people living under autocratic regimes. What distinguishes citizens from stateless individuals when state sovereignty becomes blurred and human rights are not claimable? Like stateless people, as political theorist Hannah Arendt pointed out, it is also the civilian that is in need of human rights, but also the least likely to be protected by them.

In the context of these changes in global conflict and warfare, is the category of the “civilian” still meaningful or useful? Empirical evidence shows that criteria for identifying friend and enemy are far from objective. Competing political interests that approach ethnic discrimination, abuses of power and biased views on conflict dynamics put the innocent, the weak and the non-militarised in danger. In the few examples presented here, it is clear that the legal and theoretical concept of the “civilian” is no longer appropriate. Its manipulated application contradicts the principle of protecting human life on which it is founded.

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Jun 25 2015

The sinister reality of gentrification in Washington, D.C.

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Pilar Barreyro is an MSc Human Rights student at the London School of Economics and Political Science. Her research interests explore the intersection of race, gender and national identity formation in the United States. She is a native of Washington, D.C.

Petworth area, Washington, D.C.

Petworth, Washington, D.C. (image: Vann R. Newkirk II)

Washington, D.C. is now one of the most expensive cities to live in America. Ascending the ladder to rank with New York, San Francisco and Honolulu, this new shift in the standing of Washington, D.C. has occurred simultaneously with the sinister social phenomenon of gentrification. Gentrification is no new concept in the discourses of ‘progress’ and ‘urban planning’. It has appeared under terms such as ‘urban renewal’ and ‘development’, used to disguise the accompanying harm that it wreaks on the inner city. Meanwhile, people all over the U.S. are challenging displacement as entire communities occupying lower socio-economic positions are being pushed to the peripheries of the city.

Gentrification transforms local urban communities into ‘renewed’ neighbourhoods, increasing property value and shifting the demographic to wealthier residents along the way. Little by little, old apartment buildings are converted into high priced flats, bodegas are converted into organic juice bars and suddenly the entire rhythm and pulse of a neighbourhood is drastically changed. However what is especially disturbing about gentrification is the rhetorical propaganda that is employed to defend it. Although it is marketed as a tool intended to benefit and ‘restore’ existing communities, the racially exclusionary implications of gentrification are undeniable. This ‘urban renaissance’ is nothing short of a systematic process of re-segregating cities; it is a seizure of space – a process of relocation – and it is an epidemic across the United States.

What is especially troubling is the discourse surrounding gentrification in which language of revitalisation, renewal and restoration are invoked to convey the notion of investment. Initiatives are constantly wrapped in language that disguises its often subversive intentions. Lower socio-economic communities are not removed from their neighbourhoods as an anomaly of gentrification. Their displacement is at the very centre of urban ‘revitalisation’ initiatives and this is a truth that must be acknowledged in order for radical change to occur. The implications of urban renewal are not only detrimental to those who suffer displacement and ostracisation at the hands of a discriminatory system, but also to the acknowledgement of memory and historical legacy in the urban American space. The changing landscape of D.C. is slowly eradicating its rich black histories in lieu of promoting a homogenised, culturally desolate, bourgeois wasteland.

As a native of Washington, D.C., I grew up proudly endorsing my city’s infamous nickname: ‘Chocolate City’. However, Washington, D.C. has undergone such a drastic transformation at the hands of discriminatory urban planning initiatives that its current landscape is almost unrecognisable as the historic ‘Chocolate City’. Affectionately nicknamed for its majority African American population, Washington, D.C.’s black population dropped below 50 per cent for the first time in over 50 years in 2011. This statistic is a by-product of devastating ‘urban revitalisation’ programs. What was once a city of great triumph following the civil rights movement has become an epicentre of segregation and oppression.

Corner stores, ‘mom and pop’ soul food restaurants, and other local, black-owned businesses are becoming relics of the past and in the process, the historical legacy of Washington, D.C. is being compromised. Claims are made that urban renewal programs are implemented to help ‘renew’ historically black neighbourhoods. However, so many of these programmes fail to provide measures for re-allocating resources to empower locals. There is a deficit of citywide opportunities to help community members open their own businesses, and an absence of funding for community centres and afterschool programs to empower youth. This dark reality illuminates the ever-present need to keep a critical outlook. What message is being sent when subsidised housing projects are torn down to make room for ‘trendy’ condos? How are the racialised 20th century Federal Housing Association (F.H.A.) initiatives addressed in the modern urban planning discourse?

The current geography and demography of the U.S. is the direct result of the hyper-racialised social engineering initiatives of the F.H.A. in the last century. The history of housing policy in the U.S. is that of a deeply racialised institution that systemically disempowered African-American communities through oppressive policies. The Federal Housing Association, established by the National Housing Act of 1934, used ‘redlining’ to deny African-Americans F.H.A.-backed mortgage loans. Redlining is the often racially-based practice of denying or charging more for access to services such as insurance, healthcare and jobs, and has become a tool used to implement widespread discrimination in the housing market as well.

Redlining removed the possibility for African-Americans to invest in secure housing and thereby contributed directly to the process of urban decay in the U.S. Up until 1968, the apportionment of housing was made according to oppressive racial quotas, which systemically disempowered ethnic minority populations. The Fair Housing Act of 1968 was passed in an attempt to combat the horrors of redlining. Nine years later, the Community Reinvestment Act was passed to address those same horrors. While some progress has been made to counteract these racist housing policies, oppression remains rampant as urban planning initiatives continue to both displace and disempower ethnic ‘minorities’ throughout the country.

The United States of America is in dire need of a nationwide process of real revitalisation. Communities must receive the economic support needed to empower their residents, especially the large populations that have historically been discriminated against. Initiatives need to be produced that seek to reinvest in the urban spaces of the U.S. without demolishing them and displacing their residents. In Washington D.C., gentrification – any other name notwithstanding – is nothing more than a re-segregation process that is paralysing black communities as it does nationwide.

In the case of Washington, D.C., how can we examine urban renewal as a policy aimed to benefit the city when it has single-handedly reshaped its population and cultural landscape? The effect of this policy has not only made it one of the most expensive cities in the U.S. to live in, but has also produced an entirely new Washington, D.C. The history of D.C. is a culturally rich one. ‘Chocolate City’ once danced to the soundtrack of Go-Go, and had the sweet smell of mumbo sauce. The contemporary reality is that Washington, D.C. is gradually being transformed into an upper-middle class mecca with nefarious historical, social and racial implications. Social policy has the capacity to be radically transformative and empowering, and with greater financial support, countless grassroots initiatives could impact tangible change. Black history is U.S. history and it cannot and must not be destroyed by gentrification.

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Jun 20 2015

Redeeming the human: direct action and human rights at Yarl’s Wood

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Nicci Shall is a graduate in Sociology from the University of Cambridge and a current student on the MSc Human Rights programme at LSE. She is interested in structural racism and processes of social exclusion.

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Demonstrators at Yarl’s Wood, 6 June 2015 (image: flickr/Wasi Daniju)

In the midst of the Bedfordshire countryside, between acres of carefully tended farmland, built on the good soil of our proud, upstanding, democracy, lies Yarl’s Wood Immigration Removal Centre, where asylum seekers are detained indefinitely.

According to its website, Yarl’s Wood is a “fully contained residential centre housing adult women and adult family groups awaiting immigration clearance”. In reality, it more closely resembles a prison; an ominous complex of buildings surrounded by a fence topped with barbed wire. Allegations of abuse, misconduct and rape have been made repeatedly. Home Secretary Theresa May has been accused of failing to take such claims seriously.

Yarl’s Wood was opened in 2001 by Tony Blair’s Labour government to show the general public that Britain was prepared to be tough on asylum seekers. The detainees at Yarl’s Wood – around 90 per cent of whom are female – are denied their humanity, and represented as a “threat” or a “drain” by the media and politicians alike. A recent investigation into conditions at the centre filmed staff referring to detained women as “beasties” and “animals”.

Ahead of the general election on 7 May 2015, the manifestos of both Labour and the Conservatives emphasised their intentions to be tough on immigration. Labour boasted that they would “stop illegal immigration” whilst the Conservatives assured the public that they would be “cracking down on abuse of the immigration system”. The rhetoric employed is worryingly similar; those seeking asylum, alongside others hoping to enter the UK, are not considered to be human. They are reproduced as an illegal threat to security and scapegoated for economic problems across the political spectrum.

Which raises the question: through what avenues can the humanity of those detained be restored? The human rights project usually addresses abuses through a legal framework. This has its value in mounting cases on behalf of individual detainees. However, in a rush to remain objective and persuasive, legal approaches can have a tendency to be distanced from those they strive to empower. Further, an emphasis on the law forecloses other ways of enacting change. Talal Asad has written that there are many understandings of what constitutes a human. A human rights narrative focused on legal procedures is productive of but one understanding of humanity.

By engaging in direct activism we are perhaps able to redeem a different understanding of what it means to be a human. On 6 June 2015, a demonstration at Yarl’s Wood illustrated that passion, empathy and solidarity are tools that also have the potential to enact change. Over five hundred people travelled there for the occasion, carrying banners and makeshift musical instruments. The demonstration was organised through a collaboration between detainees and people on the outside, coordinated by Women for Refugee Women and Movement for Justice By Any Means Necessary. Among the attendees were women who had been detained at Yarl’s Wood and female refugees. Others attended in solidarity, including Shami Chakrabarti from Liberty and comedian Josie Long. The protest was a personal affair; for some it was the first time they had returned to Yarl’s Wood since being detained there. Speakers articulated disgust, hope, anger and determination.

We walked the perimeter fence of the detention facility to the singing of the all-women Lips Choir. We reached a section where the barbed wire fence was opposite an accommodation block, enabling us to communicate with the women who were being held inside. They used makeshift banners and clothes to wave at us. We chanted together, showing those inside that they were people, with ideas, hopes and a lot of fight still left, in spite of the prolonged suffering to which they continue to be subjected. Protestors climbed the fence, making attempts to remove it, whilst police observed.

Direct action is a way through which we are reminded of the shared human capacity for hope and pain. Standing alongside those who had been detained at Yarl’s Wood, separated by a barbed wire fence from those who are still inside, facilitated the formation of solidarity between different groups of people. It is necessary to re-engage in our shared humanity with one another, as a first step toward fighting systemic injustice. In the short term, treatment of those inside Yarl’s Wood reportedly improves following demonstrations. In the long term, it indicates people will not stop until Yarl’s Wood, and other detention centres like it, close for good.

So, what next? The next demonstration at Yarl’s Wood is planned for 8 August 2015. Click here for more information.

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Jun 15 2015

Shooting sparrows with cannons: national security and civil liberties under Britain’s terrorism laws

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Philip Belau is a current MSc Human Rights student at LSE and president of the Human Rights Student Committee 2014/15. He holds a bachelor’s degree in History and Politics and has been involved in several humanitarian projects in the Middle East. He is currently working as the executive director of a grassroots organisation for Syrian refugees.

PicMonkey CollageIt is bleakly ironic that as we mark the 800th anniversary of the Magna Carta Libertatum, the United Kingdom is facing a new law that seems to squash some of the most fundamental civil liberties of democratic society. While the occasion should be a reason to celebrate what has evolved from a local agreement to a powerful international symbol of our liberties, the recently passed Counter-Terrorism and Security Act 2015 (CTSA) casts a long shadow over the event.

The new legislation, which became law earlier this year, marks the latest in a long line of counter-terrorism measures that have been adopted in the UK as part of the ‘global war on terror’ since 9/11. Starting with the Anti-Terrorism, Crime and Security Act of November 2001, the British government has introduced several pieces of legislation to facilitate its counter-terrorism response. These laws not only expand the powers of the British government but also challenge the philosophical and political integrity of the Human Rights Act 1998 (HRA), leading to the erosion of human rights standards in the UK.

The UK House of Lords ruled in the 2007 case of Huang that where a public authority interferes with a qualified right under the HRA, without prior derogation, it must justify that interference by demonstrating it is legal and proportionate. This judgment gave rise to a four-step test – now known as the “Huang test” – to determine proportionality. This “Huang test” requires any law interfering with a qualified right to have: (1) a legitimate objective; (2) a rational connection to that objective; (3) the minimal possible impairment to rights; and (4) an overall balance between the impact on rights and its objective. Today this doctrine of proportionality is one of the most important principles used by UK courts to review a law’s impact on rights under the HRA, and ensure that “a sledgehammer [is] not used to crack a nut”.

The CTSA was introduced as a legal response to the threat of Islamic State (IS) and the power vacuum in the IS-controlled region in Syria and Iraq. More specifically, it was meant to respond to the foreign recruitment of fighters from the UK and to disrupt their return in order to prevent attacks in the country. The provisions of the CTSA can be split in two distinct areas: ‘hard’ and ‘soft’ responses. While the ‘hard’ responses aim at arresting ‘terrorists’, the ‘soft’ responses aim to tackle and prevent extremism. The provisions at part five of the CTSA titled “Preventing people being drawn into terrorism” fall under the ‘soft‘ responses, and are a part of the Government’s so-called Prevent strategy. These preventative provisions of the CTSA oblige specified authorities “to have due regard to the need to prevent people from being drawn into terrorism” and to report “vulnerable people” who are at risk of becoming involved in terrorist related activity. Specified authorities include schools and universities, along with nurseries and childcare centres.

The possible impact of these measures on freedom of speech has raised widespread concern, especially in higher education institutions. While the provisions explicitly state that the implementing body – for instance a school or university – “must have particular regard to the duty to ensure the freedom of speech” as well as to the “importance of academic freedom” the obligations raise several practical questions. In addition, the ill-defined terminology of “vulnerable” people seems to leave room for interpretation that promises to have a significant chilling effect.

As well as the freedom of speech concerns, the preventative provisions of the CTSA potentially infringe at least two European Convention on Human Rights (ECHR) Articles incorporated into UK law through the HRA: freedom of thought, conscience and religion (Article 9) and the freedom of expression (Article 10). Whether the potential interference with these two rights is proportionate and thus allowable under British law can be evaluated with the Huang test. Firstly, as to whether the law has a legitimate objective, the answer is a tentative ‘yes’. The London bombings of 2005, the Glasgow airport attack of 2007 and the murder of Lee Rygby in Woolwich in 2013 indicate that terrorist attacks in the UK are a real threat. In light of the military success of IS in the Middle East, this threat is as high as ever – a factor that led the UK’s Independent Joint Terrorism Analysis Centre to raise the national threat level from “substantial” to “severe” in August 2014, where it remains. Furthermore, the British Government estimates that approximately 1600 citizens have already left the UK to fight for IS in Syria and Iraq, and this number will likely grow as the conflict continues. Addressing the radicalisation of these people is arguably a sufficiently important objective to justify the interference with the rights under Article 9 and 10 of the ECHR.

As to whether there is a rational connection between the law and this objective, the UK Government has argued they have a “fundamental duty” to take measures to safeguard citizens from terrorist attacks. Given the estimated number of radicalised individuals, it is reasonable for the British government to take legal measures to address radicalisation, especially among young people. Preventing people from radicalisation seems therefore to have a rational connection to the objective of preventing terrorist attacks in the UK.

The next step in the proportionality test is to determine whether the proposed measures have the minimal possible impairment on the particular right. As the provisions have not yet been subject to judicial review, it is difficult to predict how the Courts will rule on this point. However it is highly questionable whether the provisions are no more than what is necessary to accomplish the stated objective. The likely further stigmatisation of Muslims, a group that comprises around five per cent of Britain’s overall population, is almost certain to impose more than ‘minimal impairment’. In addition, it should not be the duty of the staff of schools, universities, nurseries and childcare centres to monitor for extremism. If untrained authorities are to identify people vulnerable to being drawn into terrorism, these orders will certainly have a significant chilling effect when exercised. Given this accumulation of factors, the preventative provisions of the CTSA clearly fail the requirement of minimal impairment under the Huang test.

Finally, with regard to the overall balance, it can be argued that the preventative provisions propose unnecessary and disproportionate restrictions on civil liberties. Crucially, the preventative provisions are subject to vague and broad standards of evidence and insufficient due process safeguards. Instead of an independent judicial hearing, the provisions will be overseen by a panel of persons consisting of the responsible local authority, the chief officer of police and two other persons selected upon agreement of the two former. To empower such a panel with the task of assessing an individual’s vulnerability to radicalisation risks undermining the rule of law. Additionally, the provisions seem to reverse the fundamental legal maxim of ‘innocent until proven guilty’, shifting the burden of proof of innocence onto the accused. It may be that in practice these powers are exercised carefully, but the loose way the document is drafted leaves a high risk for abuse.

As already noted, the implementation of the new counter-terrorism law will likely affect a vast number of people in the Muslim community in particular. To antagonise and marginalise a substantial part of the British population is not only to be counterproductive but dangerous, as it deliberately generates and inflames an atmosphere of ethnic and religious profiling. This process of marginalisation could exacerbate the current alienation of Muslims in Britain. Given the different impacts mentioned above, the preventative measures do not strike a fair balance between the rights of the individual and the interests of the community.

In light of the likely impacts of Britain’s new counter-terrorism law, one has to ask whether it is necessary to curtail civil liberties in order to respond to terrorism. The assertion that the enjoyment of these rights is exclusively dependant on a ‘secure environment’ provided by the state leads to illusory security demands no government is able to fulfil. Instead, national security and civil liberties should not be understood as inherently incompatible. They have to be seen as complementary and mutually reinforcing one another and thus cannot simply be ‘balanced’ against each other.

Bearing all of this in mind, the doctrine of proportionality does not present a convincing approach when developing legal measures to counter international terrorism. Instead, effective counter-terrorism strategy is best met not by enacting more restrictive policies, but by supporting and strengthening political and social dialogue within society itself. To put it in the words of Richard Criley, “our individual rights depends upon their availability to everyone, including some people whose beliefs we may not like. But if the rights of any unpopular group or minority are weakened by a decision [of the government], we will all lose some of our individual freedom in the process”. It is without question that the wrong measures promise inefficiency in the fight against international terrorism, but to quote the German poet Hans Enzensberger: “to shoot sparrows with cannons: that would mean to make the reverse mistake”.

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Jun 3 2015

MEPs send clear signal on proposed EU conflict minerals law

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Sonia Hierzig is a current MSc Human Rights student at LSE and a Research Intern with the Business & Human Rights Resource Centre. She completed her undergraduate degree in Politics and International Studies at the University of Exeter and also holds an MSc in Development Management from the Open University.

A worker at a wolframite mine in eastern DRC

A worker at a wolframite mine in eastern DRC (image: Flickr/julien_harneis)

On 20 May 2015, the European Parliament voted in favour of binding conflict minerals legislation requiring monitoring of supply chains. This is a significant strengthening of the proposal by the parliament’s International Trade Committee, which would only have applied to mineral importers, smelters and refiners. The new legislation could affect around 800,000 companies.

Richard Howitt MEP, European Parliament rapporteur on corporate social responsibility, who voted in favour of the amendment, said “this legislation on conflict minerals is a test of Europe’s claim to be a leader of responsible business…Voluntary self-certification is not enough.” He welcomed the European Parliament vote to strengthen a proposed EU conflict minerals law, to “clean blood off our mobile phones and gadgets”.

Minerals including gold, tin, tantalum and tungsten, mined in conflict areas such as the Democratic Republic of Congo (DRC), Colombia and Zimbabwe, have long been linked with funding serious human rights violations, including killings, violence and rape. In the DRC, for instance, four miners and a pregnant woman were killed at a cassiterite mine two months ago, as armed men carried out an ambush and stole minerals and other items. Sadly, stories like this are not uncommon.

The European Parliament’s International Trade Committee had initially only adopted weak amendments to the legislative proposal put forward by the European Commission. The draft regulation was mostly based on a voluntary self-certification scheme topped up with a mandatory system of certification for EU mineral importers, smelters and refiners, requiring them to use responsibly sourced minerals and display an approved European importer on the label.

The initial draft legislation attracted sharp criticism from various civil society organisations, including CIDSE, Global Witness, and Amnesty International, including because it mandated supply chain reporting for too few companies. Whilst the Parliament has addressed this issue in its vote, two other main criticisms that had been put forward remain unaddressed. One issue is that the draft legislation does not include all relevant natural resources; copper, jade and iron ore, for instance, have also been linked to serious human rights abuses. Finally, the draft legislation only applies to European companies that fail to regulate their suppliers from outside of Europe.

Despite these insufficiencies, the European Parliament vote is a huge step forward. Lucy Graham, Legal Adviser to Amnesty International’s Business and Human Rights team, said that “[t]he European Parliament has sent a clear signal. European firms cannot turn a blind eye to the risk their operations contribute to human rights abuses abroad”. But divisions mean that the proposal will now be subject to a complex and tough negotiation process. Graham went on to say that “EU Member States however remain very much in favour of a voluntary scheme… so the Parliament’s mandatory proposal is likely to meet strong resistance. It’s therefore vital that consumers, civil society and other influential voices keep up the pressure… And it’s time for governments to start listening to those voices and prioritising people over business”.

So, the regulation clearly has a long road to travel, and, even then, it’s only the first step. The 2012 US Dodd-Frank Act‘s conflict minerals provision, which requires companies to undertake due diligence and report publicly on their use of minerals, has recently been shown to lack effectiveness, as it emerged that 80% of US company reports do not comply with conflict minerals law. It is crucial that appropriate enforcement mechanisms are put into place to ensure compliance with the EU law.

Over the coming months, as negotiations on the proposal continue, the European Parliament must take its mandate seriously and stand by this strong commitment. Civil society organisations will no doubt continue to play a crucial role in pushing for stronger legislation on conflict minerals.

This article was originally published on the Business & Human Rights Resource Centre Blog.

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May 28 2015

Questions of legal identity in the post-2015 development agenda

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The UN has proposed that providing a “legal identity for all” is one of its Sustainable Development Goals, yet proposes to measure progress against this goal simply in terms of birth registration rates. Edgar A. Whitley and Bronwen Manby explore the complex relationship between birth registration and legal identity from a legal and management perspective.

Edgar A. Whitley is an Associate Professor (Reader) of Information Systems at the LSE Department of Management and Bronwen Manby is a Visiting Senior Fellow at the LSE Centre for the Study of Human Rights.

1912_Birth_Certificate_Ken_Baker

Is birth registration a suitable indicator for legal identity?

Questions of identity and documentation have become increasingly important parts of the global policy agenda in recent years and are included in the Sustainable Development Goals (SDGs) that will replace the UN’s eight Millennium Development Goals. In particular, goal 16.9 is: “By 2030, provide legal identity for all, including birth registration”.

The UN Statistical Commission (UNSC) has proposed a series of indicators to enable the UN to assess progress towards meeting the various SDGs. The national statistical offices of UN member states were then asked to rate each of the proposed indicators to determine how feasible it would be to collect statistics relating to the indicator, their view on the suitability of the indicator for the goal and how relevant they thought the proposed indicator was to the goal.

In the context of SDG 16.9, the proposed indicator is “Percentage of children under 5 whose births have been registered with civil authority”. This indicator was given the highest possible rating by member states. Versions of this indicator are already in use; for example, UNICEF report that over 50 million children in 2006 had not had their births registered by the age of five.

The proposed indicator, however, only covers part of SDG 16.9 and says nothing about the broader meaning of “legal identity”.

Following last year’s International Identity Management Conference in Seoul, South Korea, two recent meetings have brought together practitioners, activists and academics from previously unconnected worlds to discuss the provision of legal identity. These meetings have helped us begin to unpack the complexity of this important policy goal.

At the first, The Hague Colloquium on the Future of Legal Identity, “social scientists and policy researchers examine[d] the various forms of civil registration and identification currently used and introduced around the world to consider the opportunities and implications of the choices that poor states, in particular, currently face”, especially in relation to new forms of biometric identification. The second meeting was the launch event for the Lancet series on Counting Births and Deaths, an update to their 2007 series on the importance of civil registration for public health and for development more generally.

Presentations at these meetings highlighted the diverse range of actors with a stake in “legal identity”. For example, states worried about national security, documented and undocumented migration are tightening up on identity verification and control, whilst development agencies highlight the importance of identification and the “data revolution” for development and economic empowerment, and public health professionals want better documented data on causes of death. Child rights activists and UN agencies highlight the importance of birth registration for child protection and as a step towards an end to statelessness. Meanwhile, private companies involved in the production of biometric identity documents want to sell their products, frequently to governments who are unsure what policy objectives their identity policies are intending to address.

The more we learned at these workshops, the less clear the nature of “legal identity” in the proposed goal became, beyond birth registration itself. These complications ranged from the human-rights-legal (BM) to the socio-technical implementation of the administrative systems (EAW). For example, although a high level panel advising the UN has stated that a child’s lack of birth registration means that they do not have a legal identity, others argue that legal identity exists whether a birth is registered or not. In practice, lack of formal evidence of birth registration blocks access to education and other services in some countries. When the World Bank says that “identification for development” and new digital identity systems “can help developing countries leapfrog to more efficient 21st century systems”, how do the different purposes for which identification is used relate to each other?

Similarly, whilst birth registration creates a permanent record of the child’s existence and some basic facts about the circumstances of the child’s birth, this doesn’t necessarily confer a nationality on the child, the most important “legal identity” of all for that child when it becomes an adult. Although Article 7 of the UN Convention on the Rights of the Child provides that every child has the right to acquire a nationality, it and other human rights treaties are unclear on the state that has the duty to provide that nationality, except in limited circumstances, and no form of birth registration or national identity card system can solve problems of exclusionary nationality laws.

The SDG goal does not address this conundrum. Moreover, a poorly implemented civil registration system might, perversely, make claiming a particular nationality less rather than more straightforward. For example, refugees from Côte d’Ivoire fleeing violence targeted at people believed not to be “really” Ivorian, whose children receive a birth certificate from a neighbouring country, may fear that the same document could be read in future as proof that, as alleged, the child is not Ivorian.

Additional questions emerge based on how the administrative systems that might support SDG 16.9 are implemented. There are an increasing number of initiatives, often donor-supported, to create new identification systems in poor countries. These encompass both “functional” identity applications such as electoral rolls or registration of beneficiaries of particular public services; and also “foundational” applications such as national identity cards. Although there has also been a recent drive to support improved traditional civil registration systems for births, marriages and deaths, it seems that the temptation is to neglect this cheaper and more comprehensive approach in favour of the newer technologies.

Where these new identity applications cannot draw on (non-existent / poor quality) civil registration data, they rather rely on other characteristics, especially biometric “uniqueness” based on fingerprints or iris scans, as a way of eliminating multiple voting or multiple attempts to benefit from social grants. But all biometrics have limitations that may “exacerbate existing inequalities” and run counter to the spirit of ensuring a “legal identity for all”. Moreover, they cannot address the fundamental question of whether a person is who they say they are, or is entitled to vote, or is a citizen; only whether the person holding the relevant ID card is reasonably certain to be the person to whom the card was issued.

Additionally, these applications are all too rarely integrated with other “legal identity” applications and it is often legally (and practically) unclear how they relate to each other. For example, is a voter registration record considered as proof of “legal identity” (including citizenship) on an ongoing basis or only as an entitlement to vote in a single election? Can a biometrically unique Aadhaar number issued to Indian residents satisfy the know-your-customer requirements associated with telecommunications subscriber verification measures?

Despite – or because of – all these challenges, we believe that the proposed SDG goal is an important one that gets at many critical questions for development and human rights. But it is important to clarify what is meant by “legal identity”, how it relates to birth registration, and how the UN can measure progress against these goal(s). Despite all the excitement about new technologies, it seems that people from many different backgrounds agree that civil registration is an absolutely important first step.

The authors of this article are working with colleagues who participated in the Hague Colloquium with the intention of providing more detailed recommendations. If you wish to join this process, please contact them here.

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May 12 2015

How to eliminate violence against women: the view from Scotland

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Janine Ewen is a researcher in the field of Public Health and Human Rights and has been involved in overseas humanitarian work. Her current research is focused on the integration of Public Health in policing practice, with a focus on harm reduction.

Nicola Sturgeon speaking at the Scottish Women’s Aid conference in Edinburgh on 26 March 2015

Nicola Sturgeon speaking at the Scottish Women’s Aid conference in Edinburgh on 26 March 2015

On 26 March 2015, a conference organised by Scottish Women’s Aid took place in Edinburgh. The theme of the day was, Violence Against Women (VAW): a Human Rights Violation’. A number of formal and informal agencies gathered to discuss progress in combatting VAW. The international context was presented by Rashida Manjoo, UN Special Rapporteur on violence against women and a Scottish perspective was provided by Lily Greenan, Chief Executive of Scottish Women’s Aid, the First Minister Nicola Sturgeon and Scotland’s Equality and Human Rights Commissioner Kaliani Lyle.

The day coincided with the 20th anniversary of the Beijing Platform for Action, which laid out the work that should be undertaken globally to improve and protect women’s human rights. The Platform for Action identified violence against women as one of the critical areas of concern. The significance of this anniversary emphasised the conference’s strong focus on the human rights impact of violence against women, globally and locally.

Less than a year since her last visit to the UK, Rashida Manjoo stressed the responsibility on all States to recognise their role in tackling violence against women. “It is my hope that we are working on a common quest towards complete elimination of violence against women,” she said. “My mission to the UK is a starting point; a tool for you in your advocacy and a challenge to us all”.

Manjoo delivered a forensic analysis of International VAW instruments and her own mandate across the globe.

“I rely on CEDAW (The Convention on the Elimination of All Forms of Discrimination against Women) to hold governments to account. Being a mandate has allowed me to measure and evaluate in various countries on the adoption of national legislation, including institutional and policy measures. 125 countries do have policies against VAW; however there are no laws in place to guarantee protection or justice, and that leaves a huge gap. On that note, we need to remember there are no rights unless we have justice. You may find this hard to believe, but women who I have spoken to in developing countries do not believe that violence exists in the developed world against women. That is what happens when you separate both worlds”.

Through her keynote address, Manjoo made it clear that a large amount of convincing is required in her work, despite over four decades’ recognition that VAW is a human rights violation. She noted that governments often favour soft law developments (quasi-legal instruments which do not have any legally binding force) over “hard laws”. However Manjoo said that while soft law is convincing, “it is not enough – we need to strengthen laws so States can be legally bound to respond to this provocative phenomenon”.

The next speaker, Scotland’s First Minister Nicola Sturgeon, emphasised that “we need to put women at the forefront in all means of living… I want to see women across boardrooms to diminish myths that women can’t fill ‘male roles’.. Women have a place in our society, which should be free from discrimination. It’s time for women to break the glass ceiling”. Sturgeon cited her appointment of a gender balanced cabinet in November 2014 as one example of this policy being applied.

Sturgeon, with input from Kaliani Lyle, Scotland’s Commissioner on Equality and Human Rights revealed why Scotland still has work to do on VAW. She noted that only 20 per cent of domestic abuse cases in Scotland are reported to the police. Even with this under-reporting, there were over 60,000 reports of domestic violence in 2012-13, 1372 reported cases of rape and 90 attempted rapes. Furthermore, 70 per cent of women seeking asylum in Scotland will have experienced violence in their lifetime.

Sturgeon announced the development of a new consultation in the Scottish Government into criminal justice reform which could see the creation of a criminal offence of domestic abuse and revenge porn. “I know that changing the law isn’t enough on its own – but it can play an important part in the wider social and cultural changes we want to bring about,” she said.

While the conference was well-received, it did not resolve confusion of the role men can and should play in achieving gender equality. There was also the vexed question of terminology in tackling violence against women: should it be referred to as gender-based violence, or women and violence? As the remarks of Rashida Manjoo on the day demonstrated, gender neutrality has, in some cases, prohibited the advancement of women’s participation and representation in society.

With that being said, equal participation of women and men in decision making was one of the goals of the Beijing declaration and has become an international plea through the HeForShe campaign. This movement towards solidarity for gender equality is important, as it endows men with the responsibility for achieving change alongside women. As Director-General of UNESCO Irina Bokova stated recently, while the struggle for gender equality must begin with girls, it must “also include boys, and it must work within community structures, to shape new social and cultural norms, to fight against violence and discrimination, to craft new forms of global citizenship.”

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May 7 2015

Less no more: why it’s time for marriage equality in Ireland

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Gareth Walsh is a law graduate from Trinity College Dublin, and is currently undertaking the MSc Human Rights at the LSE. His principal academic interest is in the area of socio-economic rights, and utilising the law to bring about social change. As a gay Irish person, the upcoming marriage referendum represents a personally and historically seminal moment for him and his country.

A mural promoting marriage equality in Dublin (source: Flickr/infomatique)

“I have spread my dreams under your feet;
Tread softly because you tread on my dreams.
   – WB Yeats”

With the May 2015 Irish marriage equality referendum fast approaching, it is the long denied rights of a minority group that have been spread out before the general voting public for deliberation. In the debate and the vote that will follow, the Irish public should tread softly, because you tread on our rights.

The endorsement of the right to marry of Ireland’s LGBT (Lesbian, Gay, Bisexual and Transgender) minority population lies in the hands of the country’s heterosexual majority. After years of LGBT rights being denied, it is troubling that the right to marry is now, in effect, being treated as a gift for the majority to grant the LGBT minority.

The concept of a 50 per cent plus one vote lends itself to the idea of a “tyranny of the majority” whereby a bare majority can deny the rights of a minority. A sophisticated and effective democracy entails recognition and protection of minorities, particularly when they cannot command a majority of any vote in an election. The risk of the majority denying the rights of the minority appears small in the case of the marriage equality referendum, but on principle it is concerning that a minority group, their legitimacy and the merits of their cause will be assessed by the public at large. Furthermore, the Irish government opted to hold a referendum on the issue rather than legislating, despite conflicting legal views on whether a referendum is constitutionally necessary.

The quality of our love, the legitimacy of our relationships, and our ability to form a committed and equally valid family unit in society are all the subject of a broad national debate.  Such personal and intimate qualities will be measured and weighed up by the majority, and each individual will come to a conclusion as to whether LBGT relationships are worthy of equal status or not. Yet, despite the risk of minority rights being denied by public decree, the referendum does represent an historic opportunity.

Ireland is the first country in the world to hold a referendum on marriage equality, and so it should be seized as a chance to achieve a resounding win for tolerance and inclusion. A strong ‘Yes’ vote on 22 May won’t just be a hugely important step for LGBT rights in Ireland. It will be highly symbolic globally, and make Ireland the first country to achieve marriage equality by means of popular vote. A general population embracing their LGBT citizens as equals would send a powerful message around the world.

The campaign for LGBT rights in Ireland, as all over the world, has been a long and arduous one. Homosexual activity between men was only decriminalised in Ireland in 1993 following the 1988 David Norris case at the European Court of Human Rights. Homosexuality between women was never criminalised, not because of a progressive policy towards lesbians in Ireland, but because those in power doubted even the existence of gay women. Both the Irish government and judiciary were resistant to change at every stage of the process. In 1983, the Supreme Court of Ireland upheld the law against ‘buggery,’ for which the maximum sentence was penal servitude for life.  That today every major Irish political party is in favour of marriage equality is proof of the remarkable achievements of the LGBT movement in Ireland, and the transformation of Ireland more generally on social issues. The majority of Irish people today are tolerant, open and celebrate diversity.

Should it pass, the marriage equality referendum in Ireland will represent more than just a milestone in the gay rights movement. It will also demonstrate the increasing secularism of a country where public policy has historically been swayed by the Catholic Church. The famous “condom trains” from Belfast to Dublin in the early 1970s or the requirement of a prescription for the sale of non-medical contraceptives until 1985 are examples of the Church’s past power over sexual and relationship matters in Ireland. The influence of the Church also played a role in divorce remaining illegal until 1995 – and even then, it was only approved by the slimmest margin, 50.23 per cent.  Given this background, the marriage equality vote can be a watershed moment, in which the Irish public firmly separates religious influence from civic policies, and votes for inclusion and recognition of all citizens.

Many LGBT people will acknowledge that we are lucky to live in Ireland, a much more tolerant society than in many parts of the world. But as a community being simply tolerated is not enough. We should be celebrated, and have a right to celebrate our love.

When I was in a state-run secondary school in the mid to late 2000s, the topic of homosexuality was almost never mentioned by any member of the teaching staff. My one distinct memory of anything vaguely LGBT-related being brought up by a member of staff is less than encouraging. My year-head was jokingly described as gay by a student because he was wearing a pink shirt. Rather than taking that opportunity to say that there is nothing wrong with being gay, my year-head said that he was the only person in the room who had ‘proved’ he wasn’t gay because he was married and had kids. The message sent to impressionable young people was that the race is on to prove your heterosexuality, to dispel any suspicion of homosexuality as soon as possible, and marriage was held up as being the ultimate mark of heterosexuality. Full marriage equality will send the very opposite message to young gay people: you have nothing to disprove or prove about yourself, just be yourself.

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