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Andrew Park is the International Program Director of the Williams Institute at UCLA Law. He moderated this roundtable panel, which explored international trends for the LGBTI community. The panelists were made up of Melanie Bejzyk, University of Oxford; Professor Fanny Gómez-Lugo, Inter-American Commission on Human Rights and Georgetown University Law Center, and Professor Mark Wojcik, John Marshall Law School.
After Obergefell, the United States joined twenty-two other countries in recognizing same sex marriage. More than sixty countries provide protections against employment discrimination and some are beginning to recognize and/or protect on other grounds (e.g., intersex, third gender). Unfortunately, more than seventy countries currently criminalize homosexual identify and/or behavior. Discriminatory legislative proposals and laws continue to appear all over the world. However, plaintiffs are challenging these efforts at the local, regional, and international levels. Transnational claims are being filed at the regional level, international standards are being applied in domestic courts.
Park led the discussion by outlining for audience members the relevant terms that are designed to clarifying, though often further confuse these issues (e.g., intersex, gender, sexual orientation, gender expression). The panelists discussed issues ranging from the evolution of recognizing a third gender (e.g., Nepal) and high courts citing the Yogyakarta Principles in landmark decisions (e.g., Supreme Court of India) to bodily diversity and medically unnecessary surgeries designed to alter non-conforming bodies -- often without consent.
Though Gómez-Lugo was quick to cite how often she needs to update her syllabus to reflect accurately the rapidly evolving legal landscape, she reminded the audience of how importance context at the local level is both in terms of the enforcement of protections, but also how to strategically encourage countries to repeal discriminatory laws. For example, foreign aid could be conditional for countries like Uganda in an effort to improve conditions for the LGBTI community. However, these tactics can backfire and LGBTI individuals could be at greater risk if they are perceived as the cause for a reduction in or discontinued aid.
Wojcik noted that what might be framed as progressive treatment may actually disguise discrimination. For example, some countries place LGBTI prisoners in solitary confinement for their own protection, but there are arguably more humane, and less drastic measures that could be adopted. Similarly, Iran provides surgery for sex-reassignment, but it's unclear if these surgeries are performed without consent in order to make a non-conforming individual "fit".
Bejzyk described the strategy employed by the United Nations as one that is both carrot and stick. Regressive policies are targeted through naming and shaming, while best practices are recognized and lauded. These examples serve to model not only what can be possible for aspiration purposes, but practical guidance for implementation as well.
Finally, the panelists agreed that while discussion often focuses on the Global South, the Global North has only very recently begun to implement these changes. There is still no country in the world where LGBTI individuals are free from discrimination. Laws are essential, but while efforts to mobilize at the legislative level are taking place, the lives of LGBTI individuals continue to be at risk (e.g., harassment, discrimination, violence).
Kristina Alayan is Head of Content Acquisitions and Management at Georgetown Law and is co-editor (with Gabriela Femenia) of ASIL Cables.