The Director of the German Institute for Human Rights, Prof. Dr. Beate Rudolf in an interview with Caroline Ausserer.
Caroline Ausserer: The Winter Olympics are currently taking place in Sochi. How alarming is the act on “non-traditional sexual relations” in Russia that provides for fines for reports on same-sex life in the presence of minors or via the media? Even the International Olympic Committee was unsettled. However, the Russian authorities reinforced that they would not discriminate against homosexuals during the Games. What do you make of that?
Prof. Dr. Beate Rudolf: From a human rights point of view, the Russian act is untenable for numerous reasons. This starts with the imprecise provisions: Are you allowed to inform people about the human rights of lesbians, gays, bisexuals and transgender (LGBT) on the internet? Are you permitted to denounce discrimination against LGBT by means of demonstrations? Are lesbian and gay couples allowed to hold hands in the presence of children? This uncertainty already limits the exercise of human rights in an inadmissible way. In addition, there is no justification for the act: Youth protection does not mean to keep children and adolescents uninformed. Rather, they are meant to be protected from violence, coercion and disruptions to their development. Child development especially involves learning respect for others and to recognise his or her inherent dignity. Therefore, the parents’ right of education does not mean that parents can demand of the state to protect their children from every statement or behaviour that run counter to their ideas. The moral values of a majority cannot simply justify restrictions on the freedom of expression, freedom of assembly or the right to privacy, let alone prosecution. There is an absence of any proportionality here that the European Convention on Human Rights and the UN Covenant on Civil and Political Rights demand. Russia accepted both agreements voluntarily. And finally, more than thirty years ago the European Court of Justice clarified that it does not suffice for a government to assure that it will not apply criminal law to homosexuals.
On the one hand, there is a trend towards more legal equality. On the other hand, there is an opposite trend with extreme setbacks with regard to the human rights of LGBTI individuals, as can be seen in India or Uganda. How do you rate the current situation of LGBTI rights worldwide? What trends or fundamental sets of problems are observable?
LGBTI rights attest to the fact that human rights require struggles – against governments, against traditions and cultural notions and against social taboos. The struggle for the recognition of violence against women, including marital rape as a violation of human rights illustrates this clearly. Developments on an international and national level are frequently uneven and work in opposite directions. This applies to the recognition of the human rights of LGBTI, too. I can see a worldwide trend towards individuals concerned rendering public their experiences of injustice and denouncing them as human rights violations. This allows for social debates where silence existed earlier on. A basic problem is, however, that individuals who are not affected are scared of expressing their solidarity, because they fear being seen in the same light as the individuals concerned and to experience discrimination, persecution and violence on these grounds. Frequently politically and socially ruling elites can see no advantage for themselves for speaking up for LGBTI. Rather, by excluding LGBTI, they give way to the temptation to distract from the real economic or political problems they oftentimes caused themselves in order to win the approval of the population.
Where does this resistance against recognising equal rights for lesbians, gay men, bisexuals and trans* and inter* individuals come from in your opinion?
The reasons are too manifold for all of them to be mentioned here. Resistance to these very different groups of individuals seem to have in common that their visibility challenges the heteronormative world view. Inter* and trans* individuals question the gender binary as a seemingly natural classification criterion: Do different sexes/genders exist in the first place, and if so, how many? How do we define “sex” – based on genes, gonads, secondary sexual characteristics? And what do we do when these criteria diverge? Is it possible to change one’s sex/gender that was assigned at birth, and if so, under what conditions? Lesbians, gay men and bisexuals dissolve images of gender and the socially recognised assignment of roles: What is a “real man”, what is a “real woman”? Gender roles are shaped by traditional cultural and religious notions. When they are questioned, cultural practices and religions come under pressure. Therefore, resistance against the recognition of the equal rights of LGBTI are also defensive struggles of those who do not want to recognise the individual’s self-determination as an expression of the equal dignity of all human beings. And finally: The more people feel helpless in the face of political and economic developments, the stronger they focus on the family and personal sphere, which one can determine best. Maintaining conventional images of the family provides an apparent security.
On which legal basis can the LGBTI movements claim its rights?
Human rights are universal. They apply to all people everywhere and equally – that means to LGBTI, too. Therefore, all human rights treaties contain open anti-discrimination clauses. Even if they do not explicitly mention discrimination based on sexual orientation or gender identity, they prohibit it, because individuals are discriminated against and excluded due to highly personal characteristics. With regard to those countries that nevertheless deny LGBTI equal rights, individuals affected are always able to refer to all the other human rights: the right to life and physical integrity, to defend themselves against police violence and to demand state protection against violent assaults by private individuals, to freedom of expression, assembly and association in order to publicly stand up for their human rights. There is no state in the world that has not at least signed one international human rights treaty – and this is what it can be measured by.
Which successes and defeats in the last years would you particularly refer to?
In 2011, the UN Human Rights Council for the first time recognised that LGBTI have equal rights and that rights violations need to be prosecuted worldwide. This was a milestone. Even though it is non-binding, the resolution is an important argument when interpreting human rights treaties, and it puts states under pressure politically. In addition, it allows for “mainstreaming” LGBTI rights in the area of the UN, i.e. to focus on them in all human rights bodies and in all policy areas. Despite these positive developments, vigilance is required, since hard-won rights can be disputed. There was, for example, a successfully warded off attempt in the Advisory Committee of the UN Human Rights Council to proclaim the precedence of “traditional values” over human rights.
What issues are imminent with regard to LGBTI rights?
The resolution of the Human Rights Council was adopted by a slim majority only. Therefore, there is a need to achieve a broader explicit recognition of equal human rights for LGBTI worldwide and on an international level. In the past, test cases before international courts and decision-making bodies have achieved significant progress. However, this must reach the political level, too. I believe it is important that the LGBTI movements join forces with other human rights movements and collaborate with others in order to avoid that human rights are played off against each other. I hope that LGBTI organisations stand up together with all kinds of human rights organisations and religious communities against every form of discrimination, because discrimination undermines the humanity of every society. It excludes and splits and arouses hatred. Peaceful coexistence is only possible, if all individuals are recognised as equal and are able to exercise their rights without fear.
Prof. Dr. Beate Rudolf is Director of the German Institute for Human Rights since January 1, 2010.