As LGBT History Month draws to a close, Lance Price, Executive Director of The Kaleidoscope Trust asks whether constitutions are the best way to protect and promote LGBT rights. With expectations of Uganda signing an anti-homosexuality bill into law, he investigates whether constitutions can truly protect against unconstitutional acts.
Every February LGBT (lesbian, gay, bisexual, trans) History Month is used as an opportunity to celebrate the lives and achievements of our ‘community’. The focus of the month is rightly on what individuals have done to empower themselves and those like them, or to contribute to society more widely as a person who lives, loves and shares intimacy outside, in that clumsy phrase, hetero-normative traditions. But it is a useful moment, too, to reflect on how valuable constitutional protections can be in providing the space and opportunity for us to develop to our full potential and resist those who would hold us back.
There’s no doubt constitutions can be a bulwark against discrimination. Generally speaking they are seen by LGBT activists as a vital tool in seeking to prevent governments from passing, upholding or implementing laws that violate the principles of equality and justice for all. Witness the celebrations across the United States when the Supreme Court ruled the Defence of Marriage Act unconstitutional, paving the way for thousands of American citizens to have their love for each other recognised on an equal footing with their straight friends and families.
Witness, too, when the post-apartheid constitution in South Africa became the first in the world to outlaw discrimination based on sexual orientation. The Constitutional Court has since ruled that transgender people should be entitled to the same protection, effectively adding ‘gender identity’ to the list of prohibited grounds for discrimination.
Elsewhere in the world, and in particular where post-colonial constitutions were drawn up to reflect the 1948 Universal Declaration of Human Rights (“All human beings are born free and equal in dignity and rights”). The wording is less precise and where specific rights to equality are detailed they do not include sexual orientation, much less gender identity. And international bodies, for example the Commonwealth and the International Olympic Committee, to name just two that have been subject to controversy in recent months, have shown a deep reluctance even to consider including sexual orientation among the explicit protections in their governing charters.
Those imprecise guarantees of equality for ‘all’ and the rejection, in the Commonwealth Charter, of discrimination on ‘other grounds’, do at least give activists and lawyers the opportunity to argue that the constitutional protections should include LGBT citizens alongside everybody else.
And yet history warns us that we would be ill-advised to rely on constitutional reform or the benign interpretation of existing constitutions as any kind of panacea or guarantor of our rights.
The constitution of Uganda, for example, promises all citizens “equality and freedom from discrimination”. In 2008 the High Court ruled that Articles 23, 24, and 27 of the Uganda Constitution apply to all people, regardless of their sexual orientation or gender identity or expression.
Article 23 states that “No person shall be deprived of personal liberty.” Article 24 states that “No person shall be subjected to any form of torture, cruel, inhuman or degrading treatment or punishment.” Article 27 states that “No person shall be subjected to: (a) unlawful search of the person, home or other property of that person; or (b) unlawful entry by others of the premises of that person or property. No person shall be subjected to interference with the privacy of that person’s home, correspondence, communication or other property.”
But as LGBT History Month draws to a close, Uganda’s President Museveni is expected today (24 February) to sign into law an Anti-Homosexuality Act that would contravene all of those provisions and go much further in denying LGBT people or their advocates anything approaching equality in dignity and rights.
Self-evidently the Act is unconstitutional.
So too is the recent similar legislation in Nigeria that has led to a pogrom against gay men in particular. The list of contraventions of constitutional rights in the 80 jurisdictions around the world that continue to criminalise same sex intimacy is too depressingly long to detail here.
And even where governments claim to want to embrace full constitutional rights for LGBT citizens the courts may rule otherwise (India) or deep-seated homophobia in society may make fine words appear meaningless. Just ask any of the hundreds of South African lesbians, or suspected lesbians, subjected to so-called ‘corrective’ rapes what they think of their constitutional rights.
Constitutions, for all their well-meaning attempts to embrace universal principles, are to some extent time-specific and culture-specific. Clearly the framers of the US Constitution couldn’t conceive of boys armed with assault rifles spraying their classmates with bullets any more than they could have conceived of same-sex marriage. Any UK constitution framed today would incorporate sexual orientation and gender identity. Ten years ago it may have done. But what about 25 years ago, when the government was adopting the controversial Section 28 outlawing the ‘promotion’ of homosexuality in schools? Surely not.
LGBT history teaches us that constitutions can be valuable weapons in the global fight for equality but can never be relied upon by themselves to protect the rights of minorities. Undemocratic governments, desperate for popularity, will happily ignore them if by attacking gay men and lesbians they can claim to be upholding national or ‘family’ values. If societal homophobia is not tackled in other ways first then even democratic governments can legitimise excluding LGBT people from full citizenship. Effecting real change requires men and women of great courage, setting examples, braving hatred to increase visibility, learning to communicate, persuade and lead. If and when society is ready to recognise our right to equality then constitutional recognition will be the icing on the cake. It will never be the cake itself.
Lance Price is the Executive Director of The Kaleidoscope Trust. He was a Special Adviser to Prime Minister Tony Blair and is a former Director of Communications for the Labour Party. Previously he was Defence and Foreign Affairs Correspondent and Political Correspondent for the BBC. He founded the Kaleidoscope Trust in 2011.