Showing posts with label LGBT rights. Show all posts
Showing posts with label LGBT rights. Show all posts

On April 1

On this day in ...
... 2001 (10 years ago today), Helene Faasen and Anne-Marie Thus (right), both notaries, were married at city hall in Amsterdam, the Netherlands. They became the world's 1st same-sex couple to be legally married. Both brides wore lacy gowns, one in white with veil, one in a creamier tone. (photo credit) Mothers of 10-year-old Nathan and 9-year-old Myrthle, the Maastricht couple celebrate their 10th wedding anniversary today.

(Prior April 1 posts are here, here, here, and here.)

On March 16

On this day in ...
... 1822, a daughter, Marie-Rosalie, was born in Bordeaux, France, to a mother who was a piano teacher and a father who was a landscape and portrait artist as well as a follower of "Saint-Simonianism, a Christian-socialist sect that promoted the education of women alongside men" and "prophesied the coming of a female messiah." Several of the couple's children would become painters; most renowned was this daughter, known as Rosa Bonheur (left). Especially noted were her paintings of animals (right) (not to mention the menagerie of four-footed subjects that she maintained). "A professional artist with a successful career, Bonheur lived in two consecutive committed relationships with women", preferred to wear men's clothing, and is considered a feminist of her time.

(Prior March 16 posts are here, here, here, and here.)

On March 11

On this day in ...
... 1936 (75 years ago today), Antonin Scalia (prior posts) was born in Trenton, New Jersey. Following unanimous approval of the U.S. Senate, he became an Associate Justice of the Supreme Court in 1986. In the quarter-century he's served, he's become noted for an outsized personality and for espousal of a version of originalism that precludes recognition of many individual rights, such as the right to be free from criminal punishment for same-sex intimacy and the right to choose whether to terminate a pregnancy. (credit for AP photo)

(Prior March 11 posts are here, here, here, and here.)

On March 7

On this day in ...
... 1951 (60 years ago today), Virginia Margaret Bell (right) was born in Australia. A law graduate of the University of Sydney who was admitted as a solicitor in 1977 and to the bar in 1984, she practiced in the private practitioner and as a public defender, then became a judge in the New South Wales Court of Appeal. In 2009, she was appointed a Justice of the Australia High Court. (photo credit) Bell "is the first lesbian to serve on the High Court, and the second openly LGBT person after Michael Kirby, whom she replaced upon his retirement."

(Prior March 7 posts are here, here, here, and here.)

Guest Blogger: Sue Westwood

It is IntLawGrrls great pleasure to welcome Dr. Sue Westwood (pictured left) as today's guest blogger. Sue is currently a PhD candidate at the School of Law, Keele University, England, where she also teaches tort law to undergraduates. She has a prior career in health and social care provision, with associated academic and professional qualifications, and has recently re-trained in both gerontology and law. Sue is also a freelance equality and diversity researcher and trainer, specialising in the needs and rights of older people with minority identities.
Sue’s doctoral thesis is on aging lesbian, gay and bisexual identities and experiences of harassment in housing, health and social care provision for older people, within the context of new UK anti-discrimination legislation which has specific exclusions from protection from harassment on the grounds of sexual orientation. Sue's guest post below discusses the very well-received talk she gave at the Aging As A Feminist Concern conference last month at Emory Law School, about which IntLawGrrl Naomi Cahn posted here.
Sue has selected Emmeline Pankhurst (pictured below right) as her transnational foremother. Born in 1858, Pankhurst was the leader of the UK suffrage movement. (Prior IntLawGrrls posts.) After initially pursuing political lobbying to get women the vote without success, she later advocated more militant activism, particularly after her husband died. Her militant attitude caused a split with other women activists, including her daughters, and Emmeline went on to form the Women’s Social and Political Union (WSPU).
The suffragists in the WSPU chained themselves to railings, smashed windows and committed acts of arson to call attention to their campaign for women to be given the vote. Many, including Emmeline herself, were imprisoned, and then went on hunger strike. The women were subjected to brutal force-feeding on a routine basis, and Emmeline said she would never forget the sound of the women’s screams from her times in prison. Many of the women, including Emmeline, had long-term health problems associated with both the self-starvation and forced-feeding.
Emmeline was a controversial figure. She became involved in Conservative politics in later life, saying her life experiences had caused her to revise her political stance, although she always remained deeply committed to equality between men and women. In 1918 some women over 30 were given the vote in the UK, but it was not until 1928, the same year that Emmeline died, that all women were given the same right to vote as men in the UK. In Sue's words:
Emmeline was a major driving force in women first getting the vote in the UK.
Today Pankhurst joins other IntLawGrrls foremothers in the list at right just below our "visiting from..." map.
Heartfelt welcome!

Older people with LGBT Identities

(My thanks to IntLawGrrls for the opportunity to contribute this guest post, and to Professor Nancy Knauer for suggesting me)

Older people with lesbian, gay, bisexual and transgender identities face unique challenges as they age. They are at greater risk of needing formal care provision in older age, due to fewer having children, and more having fragmented relationships with birth family associated with their sexual and gender identification. Yet at the same time, there are shared concerns in the USA, UK, Canada and Australia, that health and social care providers are failing to address the needs of older people with LGBT identities and that this, in turn, is causing people to avoid services even when they may desperately needs them. Professor Nancy J. Knauer of Temple Law School (pictured right) , has written an award winning paper about the problems of LGBT older people in the USA [LGBT Elder Law: Toward Equity in Aging, 32 Harvard Journal of Law & Gender 1 (2009)] and has a book on related themes about to be published [Gay and Lesbian Elders: History, Law, and Identity Politics in the U.S. (Ashgate Publishing, Ltd.)]. There has been only minimal research in the UK as yet, which I am seeking to redress, in part, with my own PhD research (described in my bio above).
Older people with lesbian, gay or bisexual (LGB) identities face two different kinds of problems related to being ‘out’ and receiving care. They may be faced with unwanted exposure if they have been ‘in the closet’, as many people with LGB identities pre-Stonewall (during the time of criminalisation and psychiatric attempts at ‘cures’) may have been. This particularly applies to being recognised as partners of people who are terminally ill or in need of long-term care (e.g. dementia care). If they do not get such recognition, they may find themselves excluded from their loved-one’s care, and even death and funeral, by service providers and/or birth family. On the other hand, others who have previously been out (either fully or selectively) may feel it necessary to go back in the closet, particularly in terms of their own care, in order to avoid homophobia from care providers and fellow service users. Older people with transsexual identities also have very real concerns about the need for personal care in frail, dependent later older age and potential transphobic attitudes among care givers. On top of this, most LGBT activists fail to address the needs of older people within their communities, due to ageism, leaving older people with LGBT identities with nowhere to turn.
The UK, in comparison with the USA, enjoys far greater recognition of same-sex relationships and transgender identities and more formal policies relating to health and social care provision for older people with LGBT identities in housing, health and social care. However, older people with LGB identities, in both the USA and the UK, are inadequately protected from discrimination in law. In particular, new anti-discrimination legislation, the Equality Act 2010, explicitly excludes protection from harassment on the grounds of sexual orientation outside of the workplace, including in housing, health and social care services. This limitation followed vigorous lobbying from the Church of England and other religious organisations who were concerned that anti-homosexual teachings might otherwise constitute harassment in law, thereby limiting freedom of speech. However, opponents of the exclusions (who did not include Stonewall, the leading LGB lobbying organisation which, oddly, raised no objections) have argued that they may conflict with other elements of the European Convention on Human Rights, namely ‘prohibition of discrimination’ (Article 14), ‘the right to respect for private and family life’ (Article 8), ‘freedom of thought, conscience and religion’ (Article 9), or ‘the prohibition on inhuman or degrading treatment’ (Article 3).
As a result of these exclusions, the UK has created two-tier anti-discrimination legislation with people with LGB identities receiving lesser protection. The exclusions disproportionately affect older people with LGB identities, as they are more likely to be users of (sheltered) housing, and of health and social care services. However, their invisibility in academia, service provision and activism has meant the impact on older people with LG identities has been overlooked.
There is an urgent need, both nationally, and internationally, to address the marginalisation of older people with LGB identities, and the needs of older people with transgender identities, in order to resolve these inequities.



"Judicial restraint" chez le Conseil

Today the Conseil constitutionnel rejected a challenge to French law that prohibits same-sex marriage.
Plaintiffs identified only as Corinne C. et Sophie H. had contended that Articles 75 and 144 of the Code Civil (in English here) -- each of which designates that the couple to be married will be compsed of a man and a woman -- denied them rights and liberties guaranteed by the French Constitution.
Invoked was Article 6 of the 1789 Declaration of the Rights of Man and the Citizen (available here in the original French), which, in English translation, sets out the principle of equality:
Law is the expression of the general will. Every citizen has a right to participate personally, or through his representative, in its foundation. It must be the same for all, whether it protects or punishes. All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents.
The 6-man, 2-woman Conseil (prior posts here, here, and here) articulated as its basis for sustaining the ban on same-sex marriage a structural / separation-of-powers / judicial restraint argument. It's an argument that American constitutionalists will find rather familiar.
Pivotal was ¶9 of the 11-paragraph judgment styled Mme Corinne C. et autre [Interdiction du mariage entre personnes de même sexe]. Per loose translation by this 'Grrl, ¶9 repeated the gist of Article 6 quoted above, then continued with additional considerations:

► The principle of equality is not contravened by legislation that regulates different situations in different fashions, nor by certain inequalities adopted in the general interest, provided that the resulting difference in treatment bears a direct relationship to the goal underlying the legislation;
► In maintaining the principle according to which marriage is the union of a man and a woman, the legislature, exercising power granted by Article 34 of the Constitution, has deemed that the difference of situation between same-sex and opposite-sex couples can justify different family law rules;
► It is not for the Conseil constitutionnel to substitute its judgment for that of the legislator respecting the nature of this difference of situation;
► For these reasons, the complaint is dismissed.

With that, it would seem, French marriage-equality advocates must move chez le Parlement.

Look On! Asylum Cases Brought to the Theater

(Look On! takes occasional note of noteworthy films and stage productions.)

Playwright Jefferey Solomon has written two exceptional plays based upon real asylum claims and cases brought in United States immigration courts. The first, De Novo, depicts the case of a fourteen-year-old boy named Edgar Chocoy who fled Guatemala City when MS-13, the largest gang in Central America, put a hit on his life. He traveled over 3,000 miles through the desert, and across the borders of three countries in search of his mother who had left him at the age of six months to work in the United States. Detained by the Department of Homeland Security upon his entry, Edgar, normally quiet and timid, spoke clearly and loudly about his fear of being deported: “I’m afraid to go back. They’ll kill me.” A pro bono immigration lawyer helped Edgar argue his asylum case in Denver, but the Immigration Judge ordered Edgar deported to Guatemala. He was murdered seventeen days later. The play weaves together court transcripts, interviews, letters and other documentary sources to reconstruct the gripping and poignant true story of the case whose outcome prompted a national outcry and a fundamental reconsideration about the way in which the government handles the many thousands of unaccompanied minors in immigration custody.
The second play, Tara's Crossing, tells the story of a transgendered asylum seeker from Guyana and her uphill battle to prove her claims of persecution from within the confines of U.S. Immigration Detention. The play, inspired by interviews with asylum seekers from around the world, deals with the hurdles that lesbian, gay, bisexual, and transgendered asylum seekers and refugees face in proving that their fears of persecution are well founded particularly when detained.
Solomon’s theater company, Houses on the Moon, based in New York City, aims to educate the public about the perils that vulnerable asylum seekers face navigating US immigration procedures and laws, particularly as most are unrepresented. As IntLawGrrl Jaya Ramji-Nogales has documented in her co-authored pieces on asylum claims, the likelihood that an asylum seeker will be successful when unrepresented by an attorney falls to about 14%.
The Boston premiere of De Novo, presented by New England LawBoston’s Center for Law and Social Responsibility, will take place at the Stuart St. Playhouse on Wednesday February 9th at 6:30 with post play discussion with the artists and law professors to follow. The show is free and open to the public (rsvp to Martha.S.Drane@nesl.edu).

Supreme balance shift

In her essay for "Women and International Criminal Law," our special edition of International Criminal Law Review (prior posts) now in production, IntLawGrrls guest/alumna Patricia M. Wald writes that

women judges (men too of course) have to be recognised as smart, fair, and hardworking if they are to wield influence ...
It appears the 2 newest arrivals to the U.S. Supreme Court got an advance copy.
Appears, too, they've heeded this sage advice from Wald, onetime Judge on the International Criminal Tribunal for the former Yugsolavia and Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit.
Judging from recent reports, 2 voices are likely to be heard once the Court takes the bench to hear oral arguments this morning: the voices, that is, of Justices Sonia Sotomayor (above left) and Elena Kagan (above right). (credit for Dec. 26, 2010, Steve Petteway/Supreme Court / photo, also depicting Justice Ruth Bader Ginsburg at center)
Since Kagan was seated at the beginning of this October Term 2010, "the tenor of the debate has changed," David Savage, Supreme Court correspondent for the Los Angeles Times, recently reported. For years, he wrote, "Supreme Court conservatives led by Justice Antonin Scalia dominated the debates during oral arguments." But now Sotomayor and Kagan "have joined the fray and reenergized the liberal wing."
Bolstering Savage's assessment was a report by New York Times Supreme Court reporter Adam Liptak. The title pretty much said it all: "Sotomayor Guides Court’s Liberal Wing." She does so, he wrote, by close questioning and incisive commentary that, taken in combination, reveal -- dare one say empathy? Liptak preferred to say that
she has displayed a quality — call it what you will — that is alert to the humanity of the people whose cases make their way to the Supreme Court.
An example of this combination, from an article by the Wall Street Journal's Jess Bravin, regarding a recent oral argument on California prison conditions:
'When are you going to avoid the needless deaths that were reported in this record?' Justice Sonia Sotomayor said at arguments on Tuesday. 'When are you going to get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you are going to deliver care that is going to be adequate?'
Amid reports that these new, "smart, fair, and hardworking" Justices may be shifting balance on the Court, Justice Scalia publicly renewed his attacks on substantive due process applied to enforce rights of women (and, here, gays).
Coincidence?

DADT no. Child brides yes. DREAM not.

The headline presents one way to read recent doings in Congress. The latest developments:

Repeal of "don't ask don't tell," the military policy regarding gays and lesbians (prior posts available here). Having cleared the final congressional hurdle yesterday, the repeal legislation's now on the President's desk.
House blockage Thursday of the International Protecting Girls by Preventing Child Marriage Act of 2010, which, as we posted, earlier had won unanimous approval in the Senate.
► Yesterday's failure to secure Senate as well as House passage of the DREAM Act; that is, the the path to citizenship for some young, undocumented immigrants. Full name: Development, Relief, and Education for Alien Minors Act of 2010.

Still on the Senate's docket, today and until the upper chamber adjourns: New START.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'On the battlefield it does not matter who you love. Only the flag that you serve.'

-- U.S. Rep. John Lewis (D-Georgia), commenting on yesterday's House OK of a bill to repeal "don't ask don't tell," the 1993 statute that bars gays and lesbian from serving openly in the U.S. armed forces. The House vote was 250 to 175. Still unclear whether the Senate will consider this standalone bill during the soon-to-end term.

Human Rights Defenders: In the frontlines

Dora “Alicia” Recinos Sorto (left) of El Salvador was shot dead in November 2009, while on her way home from doing laundry at a nearby river. She was eight months pregnant and holding her two-year-old child when she was killed. She had been active in opposing a mining operation in her community due to concerns about the mine's health and environmental impacts. Attacks on environmental activists throughout Latin America are on the increase, according to the Center for International Environmental Law (CIEL).
On 25 October 2010, the
Inter-American Commission on Human Rights held a hearing on the situation faced by environmental activists in Central America. CIEL provides background information, as well as a link to a webcast of the hearing, here.
People who work to defend human rights are subjected to killing, death threats, torture, kidnapping, arbitrary arrest and detention, prosecution, defamation, burglary,
and more. This year's theme for Human Rights Day -- December 10, the anniversary of the adoption of the Universal Declaration of Human Rights (prior IntLawGrrls posts) -- is human rights defenders who act to end discrimination.
Human rights defenders are targeted not only by
governments but also by private individuals and entities. In her August 2010 report, UN Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya (right) focused on state obligations under international law with respect to human rights violations against defenders by non-state actors. (photo credit)
People working to end rights abuses targeting gay men, lesbians, transgender and bisexual individuals are among those who work at great personal risk. On Human Rights Day this year, in the ECOSOC Chamber of the United Nations in New York, the Permanent Missions of Argentina, Belgium, Brazil, Croatia, France, Gabon, the Netherlands, New Zealand, Norway, The United States of Amer
ica and the Delegation of the European Union will hold a High Level Panel Discussion on Ending Violence and Criminal Sanctions on the basis of Sexual Orientation and Gender Identity. UN Secretary-General Ban Ki-moon will deliver opening remarks and Archbishop Emeritus Desmond Tutu will deliver a special video address.
The Association for Women in Development (AWID), in collaboration with the Women Human Rights Defenders International Coalition, recently issued a new reference tool, List of Materials and Resources for Women Human Rights Defenders, which lists:
  • research materials dealing with the security and protection of defenders;
  • manuals on how to document and monitor violations of women’s rights;
  • information on how to conduct trial observations;
  • manuals on the rights and mechanisms available to women human rights defenders at risk;
  • materials that address specific themes particularly relevant to women defenders, such as sexual orientation, religious fundamentalisms and conflict.

Watch Prop 8 arguments live

From 10 a.m.-12:30 p.m. Pacific time today, a panel of the U.S. Court of Appeals for the Ninth Circuit will hear oral argument on a trial court's August ruling that California's ban on same-sex marriage violates the U.S. Constitution.
Attorneys will argue in San Francisco before Judges Michael Daly Hawkins, N. Randy Smith, and Stephen Reinhardt -- the last of the 3 having denied the motion to disqualify himself filed by proponents of the ban, contained in the state's Constitution as a result of voters' approval of a 2008 ballot initiative, Proposition 8 (prior IntLawGrrls posts available here).
The Ninth Circuit has decided to permit live dissemination of the arguments in the case, Perry v. Schwarzenegger. The court's decision gives rise to any number of ways to watch the arguments live:
► It'll be streamed into auditoriums at many law schools (including my home institution, the University of California, Davis, School of Law); and
► It'll be broadcast on C-SPAN.
The appeals court also has set up a web database on the case. Quick skimming of briefs available there indicates one good bet: whatever the panel should decide, it's unlikely to cite foreign law or practice, as no litigant appears to have mentioned any.

Incoming Foreign Relations chair

The arrival in January of the 112th Congress is slated to bring the 1st woman chair of the Foreign Relations Committee of either house of Congress.*
Moving from ranking minority member to chair will be U.S. Rep. Ileana Ros-Lehtinen (left).
In the United States since age 7, when her family fled her birthplace, Cuba, Ros-Lehtinen has served in Congress since 1989. As described by the Associated Press, her South Florida district "includes parts of Miami's Little Havana and the tourist-dependent and gay friendly Miami Beach and Florida Keys." That combination makes for the occasional unexpected position -- unlike many Republicans, she voted to repeal "Don't Ask Don't Tell."
On many other issues, however, Ros-Lehtinen is likely to be a thorn in the side of policies favored by the administration of President Barack Obama. Examples of expected points of contention:
► She'll "resist any White House attempts to pressure Israeli Prime Minister Benjamin Netanyahu."
► She "may try to chip away at the president's executive order" -- about which we've posted -- "allowing foreign aid for international groups that provide information about abortion services."
► She'd "like U.S. contributions to the U.N. to be voluntary until the U.S. creates an office to audit U.N. activities for transparency and eliminate waste." She's particularly critical of the U.N. Human Rights Council, whose members include countries like China, Saudia Arabia -- and the country with which she's expected to oppose any U.S. dialogue, Cuba. _____________________________

* A far cry from the "leadership" posts women tended to hold not so long ago -- more than 1 Congresswoman was chair of the House Beauty Shop Committee.

The Asylum Law Round-Up

In the past two weeks, two federal courts of appeals have weighed in on important asylum issues, yet again demonstrating the poor quality of decision-making at the immigration courts and the Board of Immigration Appeals (BIA) and the importance of access to judicial review for asylum seekers.
Last Monday, in Todorovic v. Attorney General, the Eleventh Circuit vacated and remanded an immigration judge's decision denying an asylum claim because he did not believe that the asylum seeker was gay. As the Court noted, the immigration judge "relied impermissibly on stereotypes about homosexuals" to find that the applicant was not a credible witness.
The applicant, Todorovic, described a litany of abuses, from rape to severe beatings, that had been perpetrated upon him by various state and non-state actors in Serbia and provided ample corroboration of his claims. He further explained that these instances of persecution occurred either because the perpetrators knew he was gay or because he was in a gay bar or with his boyfriend, a gay rights activist. Yet the immigration judge held:
The Court studied the demeanor of this individual very carefully throughout his testimony in the Court today, and this gentleman does not appear to be overtly gay . . . since he bears no effeminate traits or any other trait that would mark him as a homosexual.
Of even greater concern, based on the record described above, the Board of Immigration Appeals affirmed the immigration judge's determination that Todorovic was not a credible witness. Even under the highly deferential substantial evidence test, the Eleventh Circuit could not support this determination. While Todorovic can celebrate this outcome, it was disturbing to note that this was the fourth court of appeals decision in the past four years to overturn an immigration judge's credibility findings because they were based on stereotypes about gays. This reveals a significant failure of training in the immigration courts and of effective review at the BIA.
On Wednesday, in Cheng v. Attorney General, the Third Circuit remanded to the BIA the case of a young Chinese woman who claimed persecution based on her opposition to China's coercive population control policies. Cheng became pregnant by her boyfriend at the age of nineteen; though they wanted to marry, their village forbade women from marrying before the age of twenty-three. When town officials discovered her pregnancy, they tried to force her to have an abortion. Cheng fled, and when the officials learned she had given birth elsewhere, they confiscated her family's farm and truck, on which Cheng's family depended to earn a living. The town government ordered that Cheng and her boyfriend be sterilized, and threatened to take her baby from her and detain her boyfriend for months if she did not cooperate. Under this pressure, Cheng agreed to have an IUD inserted, which was particularly painful, and was forced to submit to gynecological exams every three months to verify its presence (and was assessed significant fines when she was unable to appear for these exams). Because she had two more children in the United States, Cheng feared sterilization upon return to China.
The immigration judge, finding Cheng credible, initially granted her claim, but then the BIA vacated the decision and remanded it for further proceedings in light of their recent decisions on China's population control policies. The BIA concluded that mandatory IUD insertion alone does not render an applicant eligible for asylum, but failed to address Cheng's resistance to the IUD and the harms that resulted. The immigration judge on remand denied the asylum claim, and on Cheng's second appeal, the BIA affirmed. (credit for photo at left).
Again, even applying the substantial evidence standard of review, the Third Circuit was compelled to disagree. The Court laid out the history of the coercive population control provisions of U.S. asylum law. In 1989, the BIA decided that China's family planning policies, even where they resulted in forced sterilizations, could not be considered persecution. Congress disagreed, and in 1996, expanded the definition of refugee to include those who suffered forced abortion, forced sterilization, or persecution for resistance to a coercive population control law. In 2008, the BIA decided that forcible insertion of an IUD, though "intrusive", does not rise to the level of persecution without aggravating circumstances.
Though it was disappointing that the Third Circuit did not dismantle this standard, the court sidestepped it by holding that the aggregate mistreatment suffered by Cheng constituted persecution on account of her resistance to China's population control policies. Again, the case presents a chilling reminder of the limitations of review by the BIA and the administrative asylum process. What has become of the Chengs and Todorovics of the world who were not able to pursue their asylum appeals into the federal courts?

On 9/11, Remembering the Other’s Others: International Law & Muslim Fundamentalism

The ninth anniversary of September 11, 2001, finds the international community still grappling with the consequences of that terrible day.
Armed conflicts which began in the wake of 9/11 continue in Afghanistan and Iraq, spilling over now into Pakistan and Yemen with often devastating consequences for civilians. Human rights abuses in the “war on terror” remain largely unpunished, but will never be forgotten around the world. Xenophobia directed against Muslims serves as a useful tool for right-wing politicians in the West. And you may have heard that an idiot in Florida has been trying to decide whether or not he will burn hundreds of Qur’ans today.
At the same time, Muslim fundamentalist armed movements akin to those that perpetrated 9/11, like the various permutations of Al Qaeda and the Taliban, or Al Shabab in Somalia or Boko Haram in Nigeria, just to name a few, continue to pose major challenges to human rights in Muslim majority societies and around the world. For a terrifying insight into the worldview of defenders of such movements, see here.
Muslim fundamentalist armed movements often kill civilians indiscriminately, as they did on 9/11, a day to which Al Qaeda chillingly refers as “Holy Tuesday.” They also target artists, writers and freethinkers for assassination, and purvey systematic discrimination against women and religious minorities and LGBT individuals. They seek to impose their version of the Sharia on all Muslims everywhere – this often means advocating practices like stoning women for adultery. (credit for logo at right of the Global Campaign to Stop Stoning) Hence, such movements pose particular threats to international law in the areas of human rights, humanitarian law and conflict prevention, inter alia.
My article “Remembering the Other’s Others: Theorizing the Approach of International Law to Muslim Fundamentalism,” published this summer in the Columbia Human Rights Law Review, challenges international lawyers to develop a critical analysis of Muslim fundamentalist movements and to support the many Muslim human rights defenders battling fundamentalism.
Faced with the current polarized environment, this enterprise is unquestionably a daunting task, and I see the already constricted space for my argument narrowing further. Muslim fundamentalists – and those confused with them – have also themselves been the targets of a range of grave violations of international law by states in recent years, like torture. Racialized discourses and policies directed against people of Muslim heritage have proliferated since September 11, 2001, and are currently experiencing a particularly disturbing revival – what might be called hatredofmuslims version 20.10.
All of this fuels more fundamentalism.
Despite these real difficulties, offering a critical perspective on the contemporary problem of Muslim fundamentalism remains an essential project for international lawyers. As a discipline we in international law have mostly engaged critically with the (admittedly problematic) responses to Muslim fundamentalism, rather than with the phenomenon itself.
► Can we offer an accurate or useful commentary on the responses to Muslim fundamentalist movements if we overlook their existence and impact in the first place?
► Of what use is our critique of the “war on terror” if we are largely silent about one side of that “war”?
In fact, the failure of learned discourse in the United States – including in the field of international law – to name and thoughtfully explain the problem of Muslim fundamentalism actually risks facilitating discrimination against Muslims in general. This omission obscures the fact that contemporary terrorism and the “war on terror” actually revolve around a very specific set of politics and political actors, not around broader religious denominations or religious claims.
Ordinary Muslims or the Muslim religion as a whole must not be confused with specific fundamentalist movements and their adherents, just as most American Christians would not want to be identified with Christian fundamentalist Terry Jones. Yet, the mere critique of Muslim fundamentalist movements themselves is not per se an expression of anti-Muslim bias, just as criticism of the pyromaniacally inclined Pastor Jones is not an attack on Christianity. This, I fear, is a fact that is likely to get lost in the current cacophony.
Actually, Muslim fundamentalist armed groups’ primary victims, as the 2006 U.S. National Strategy for Combating Terrorism acknowledged, are often other people of Muslim heritage. Hence, defending the human rights of Muslims means successfully defeating fundamentalism (and vice versa).
In the contemporary period, Western discourse, including in the field of international law, has sometimes seemed to offer only two choices: the openly discriminatory or flawed characterization (Islam is inherently fundamentalist, all Muslims are fundamentalists and so on), or the one that is too politically correct to even broach the topic of fundamentalism. Neither one is helpful or accurate. What we need is a principled, human rights based critique of Muslim fundamentalism, alongside a principled, human rights based critique of discrimination against Muslims. To paraphrase a brilliant Pakistani colleague, I reject the idea that my choices are limited to accepting either Glenn Beck or the Sharia, and I reserve my right to criticize both. I utterly reject both the would be suicide bombers and the would be Qur’an burners, and neither one can ever justify the actions of the other.
Returning to today’s sad anniversary, I honor the memory of all the 2,976 victims of September 11. They were women, men and children who came from more than 90 countries, from many religious, racial and ethnic backgrounds, and from all walks of life. All are mourned by family and friends. In the current moment, I think about Amenia Rasool (left), a Guyanan-American Muslim woman who worked on the 95th floor of the World Trade Center. (photo credit) I first read about her in The New York Times remembrance section.
I am humbled by the thought of such a terrible death at the hands of Muslim fundamentalists, and compelled by the beautiful complexity of Amenia Rasool’s existence, a life which challenged all simple narratives about what it means to be a Muslim woman in America. Though she had an arranged marriage, she and her husband reportedly shared domestic tasks. She worked as an accountant by day, but in the evening when her chores were done, she was said to enjoy watching taped soap operas and painting her fingernails. All of these things – women working outside the home, dramatic entertainment and use of cosmetics are often prohibited by fundamentalists – sometimes on penalty of death. Meanwhile, many American right-wing racists cannot conceive of a Muslim woman with such a life, nor do those who wave hateful signs in protest against the proposed Muslim community center in Lower Manhattan (“No Islamic Settlements in America”) remember her, even in death. She would have been “the other” to some of these Americans, but was also “the other” for Muslim fundamentalists. It is this complex, multidirectional dynamic that I am trying to name with the title of my article, “Remembering the Other’s Others.”
I am hoping that human rights advocates will remember Amenia Rasool when they conceive of what human rights means in relation to September 11th and its aftermath. This means taking violence by nonstate actors – as well as by states – seriously, as I underscored in my September 11, 2008, post,"Terror/Torture." This means being relentless in demanding accountability for those surviving persons involved in such terrorist atrocities and for the atrocities of response that have followed. This means that we must face up to the menace of Muslim fundamentalism, while (and as one means of) staunchly defending the human rights of Muslims in the United States and beyond. (credit for 2009 photo of protest against Sudanese prosecution of Lubna Hussein for wearing pants)
The task of human rights, it seems to me, must be to create an international community that recognizes the complexity of a life story like Rasool’s, and that protects the Amenia Rasools of the world from all of the kinds of discrimination and coercion and horror and violence they can face – as women, as Muslims, as immigrants, as Americans, as civilians, as people who live these categories as overlapping and intersecting rather than opposing. Rasool left behind four children when she was murdered by Al Qaeda. Let us hope we can make that better world in their lifetime.
A few nights ago, I walked along the Hudson River, transfixed by the beams of the Tribute in Light, streaming upward where the Twin Towers used to stand, in commemoration of the approaching anniversary. (credit for 2009 photo, top left) The powerful illumination filled the sky where the most extreme Muslim fundamentalists had blown a terrible empty hole nine years ago. Despite that grave international crime, and all that has followed, for me these beams of light still reflect the simple promise that we human beings can do better in how we treat one another.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

The Don't Ask, Don't Tell Act infringes the fundamental rights of United States servicemembers in many ways, some described above. The Act denies homosexuals serving in the Armed Forces the right to enjoy "intimate conduct" in their personal relationships. The Act denies them the right to speak about their loved ones while serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before entering military service; it discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality. In order to justify the encroachment on these rights, Defendants faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the Government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden. Thus, Plaintiff, on behalf of its members, is entitled to judgment in its favor ... for violation of the substantive due process rights guaranteed under the Fifth Amendment.

-- U.S. District Judge Virginia A. Phillips of the Central of District California, based in Riverside, in the 86-page opinion issued yesterday in Log Cabin Republicans v. United States, in which she ruled that the government's "Don't Ask Don't Tell" law violates the U.S. Constitution. Having so ruled on 5th Amendment due process grounds, Judge Phillips then proceeded to rule that the law, found at 10 U.S.C. § 654, which has been applied to lesbians and gays in the military since 1993, also violates the free speech and petition rights of the 1st amendment.

On August 26

On this day in ...
... 1969, C-150, an Omnibus Bill that revised Canada's Criminal Code to decriminalize sodomy, went into effect. The entry into force marked the end of a campaign touched off by the 3-2 Canadian Supreme Court judgment in Klippert v. The Queen (1967), which dismissed an appeal lodged by a gay man sentenced to an indefinite period of preventive detention on as "a dangerous sexual offender." Soon after the bill was introduced, and it became law after its parliamentary sponsor, Pierre Trudeau -- who'd defended the bill in a televised interview by saying: "There's no place for the state in the bedrooms of the nation." -- became Prime Minister. The legislation Canada's laws with regard to not only to this aspect of sexual conduct, but also to abortion, contraception, and other matters.


(Prior August 26 posts are here, here, and here.)

U.S. court overturns state marriage ban

An e-mail just received from my Law Librarian, Erin Murphy, identifies the pith of the trial court judgment against Proposition 8, the voter initiative that made a prohibition on same-sex marriage part of California's Constitution. (Prior IntLawGrrls posts available here.) With a hat tip to Erin, here's the money quote by U.S. District Judge Vaughn R. Walker, Northern District of California:

'Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed the evidence shows Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite sex couples are superior to same sex couples.'
By those words and many others contained in the 138-page ruling in Perry v. Schwarzenegger, available in pdf here, Walker ruled that the ban on same-sex marriage violates the equal protection and due process guarantees of the U.S. Constitution. (photo credit)
In a curious aside to unsuccessful efforts to have the Perry trial televised -- on which IntLawGrrl Kathleen A. Doty posted -- the court webpage includes not only links to the ruling, but also to YouTube videos of evidence to which the ruling refers.
More litigation sure to follow.

On July 19

On this day in ...
... 2005 (5 years ago today), boys aged 18 and 16 were executed by public hanging in Iran (flag at left). The punishment stemmed from allegations that they had sexually assaulted younger boys. A defense lawyer said that according to national child-offender laws, the sentences should have been commuted to 5 years in jail. The death penalties -- banned by the 1989 Convention on the Rights of the Child, to which Iran is a state party -- provoked widespread condemnation. Individuals like Shirin Ebadi, an Iranian attorney and the 2003 Nobel Peace Prizewinner, reiterated criticism of the juvenile death penalty, and some rights groups contended that the boys were punished not for committing assault but for engaging in gay sex.

(Prior July 19 posts are here, here, and here.)
 
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