Sexual Justice?

Same-Sex Marriage as a Human Right and the Interplay between Domestic, European and International Law

Yuval Merin
Striks School of Law, The College of Management Academic Studies, Israel
ymerin@yahoo.com

While an increasing number of countries around the world have been moving toward the recognition of same-sex marriage, most international and regional tribunals still view the protection of the traditional family as a legitimate justification for excluding same-sex couples from the institution, and have not made clear whether any minimum level of recognition for same-sex partnerships is required at the national level. International tribunals have thus far sufficed with requiring countries that do not recognize same-sex marriage or registered partnerships to offer same-sex couples only a few particular benefits accorded to married couples. The Yogyakarta Principles, which do not include a demand that states recognize same-sex marriage, set even a lower threshold, stating that countries that do not recognize same-sex marriage or registered partnerships need only extend to same-sex couples the rights enjoyed by opposite-sex unmarried couples. This position is inconsistent with the growing trend among nations to recognize same-sex marriage and with the accepted principles of non-discrimination. International law allows for distinctions between different classes of people only if the measure is proportional and necessary in a democratic society for the achievement of a legitimate state purpose. Since no rational-secular justifications for the exclusion have been provided and no concrete societal or individual harm caused by including same-sex couples has been demonstrated, the only justification for the prohibition on same-sex marriage has been majoritarian moral and religious disapproval. Therefore, and since marriage alternatives are inherently unequal, international and regional tribunals should recognize a human right to same-sex marriage notwithstanding the existence of a consensus on the matter or the lack thereof.

Normal Violence: Sexual Autonomy in Turkey

Selmin Seda Coskun
Istanbul University
selminseda.coskun@gmail.com

 

The prevalence of a heteronormative lens has altered perspectives in such a way, that natural and socialized viewpoints have become indistinguishable. The imposition of a categorical perception of femininity and masculinity (the gender binary) leads to the recognition of individuals through their sexuality, rather than their human character. Individuals who seek their own sexual identity by breaking these imposed norms are perceived as having a pathological disorder, such as a ‘sexual identity problem,’ and are seen as deficient, shameful, and as if they have existential mental issues. With this negative perception of sexual deviance from the norm, a form of invisible violence is generated. One which finds its roots in culture, moral values, beliefs, and the traditional-patriarchal structure. Thus, the negative perceptions towards a search for sexual self-identity is regarded as a legitimate situation, and is defined as norm’al. The perpetuation of this ‘legitimate violence’ is provided by the masculine nature of law. In this article, the correlation of violence and culture, law and power is revealed by the exhibition of the heteronormative sexist structure of law that does not and cannot embrace LGBT individuals. I conclude that the reason behind the Turkish LGBT community’s inability to become a legitimate subject of law is due to the intricate interactions between power, violence, and law that stems from the dominant conservative patriarchal culture of Turkey.

 

Homophobia in Indonesia: Competing Discourses of Human Rights, Religion and Culture

Saskia Wieringa
Amsterdam Institute for Social Science Research (AISSR) – UvA
S.E.Wieringa@uva.nl

 

Indonesia is known as a majority Muslim country in which LGBT people were relatively accepted. There were different levels of stigma, but both moderate Islam and the wider society more or less left LGBT people alone.

This ‘tolerance’ has recently been blown to pieces by a virulent campaign of homophobia which started when in January 2016 a meeting on LGBT issues on a university campus was prohibited. Suddenly rightwing papers declared LGBT a threat to the nation and well-known politicians such as the Ministry for Technology declared LGBT was a disease, and/or prohibited by religion and culture and that it should not be allowed to spread, or infect children. Hardwing religious leaders called for banning or killing LGBT people, many advocate various forms of healing and the Ministry of Social Affairs even signed a contract with a psychological bureau. The Minister of Defense LGBT groups are waging a proxy war, more dangerous than a nuclear war, fueled and paid for by foreign nations. These ´foreign´ nations do not include Saudi Arabia which has spent enormous funds on education and salafist teachings over the past 3/4 decades. Human rights defenders are seen as protecting LGBT groups, as they were seen only a few months ago as a guise for communism. The west is both seen as a source of immorality, or in the form of Russia as a steadfast nation with sensible anti-LGBT legislation. In this presentation I will analyse the breakdown of ´tolerance´ of LGBT people, focusing on the competing discourses of human rights on the one hand and the manipulation of religious and cultural arguments on the other hand.

 

Towards Sexual Justice – a Sexual Rights and Health Agenda for a Global Sexual Ethics

Tom Claes
INSEP – International Network for Sexual Ethics and Politics
CEVI – Centre for Ethics and Value Inquiry, Ghent University
Tom.Claes@UGent.be

 

The idea of ‘Sexual justice’ is surprisingly underdeveloped and largely absent in contemporary (sexual) ethics. But it is badly needed. Ethics cannot stay side-lined when sexuality is concerned, nor too culturally or academically entrenched. Recently the concepts of ‘(global) cosmopolitanism’ and ‘sexual citizenship’ have been explored as possible tools for both local and global sexual ethical thinking and activism.

In this paper I will explore a different venue. I will sketch out an empirically sensitive and theoretically sound approach to developing a substantial theory of sexual justice that enables us to transcend the inherent connection with the nation/state and the law that is present in the concept of citizenship, and will generate a more concrete and applicable conceptual tool than the idea of cosmopolitanism.

Formulating a theory of social justice is not just an exercise in which existing ethical theorising about justice is then applied. A substantial, realistic, applicable, widely acceptable idea of sexual justice should draw on the experiences and aspirations of those who might benefit from and find inspiration in it. Over the last decades we have witnessed the rise of a Human rights-based sexuality activism and discourses in which sexual rights and health play a crucial role. These trends could and should inform the development of a globally relevant sexual ethics.

I will adapt Richard Boyd’s notion of ‘homeostatic property-cluster definitions’ (HPCD) as a tool to connect concept to theory and to practice. HPCD’s do not provide necessary and sufficient conditions. They are open-textured and allow for a degree of indeterminacy in extension. HPCD terms name a family of properties and underlying mechanisms that are contingently and homeostatically clustered and have causal and explanatory efficacy. In HPCD’s the definiendum cannot be sufficiently defined analytically. Determining the relevant properties and mechanism is an a posteriori theoretical/empirical issue. Using a HPCD approach allows us to draw on existing ethical theories and insights, and enables feedback from real world and life practices. Applying a HPDC-approach to the formulation of a notion and theory of sexual justice requires tools for identifying the constituting elements of sexual justice and the underlying mechanisms that bind them. I will be using George Ritzer’s model of grobalization/glocalization and Fuyuki Kurasawa’s account of ‘human rights as practices’ as my main analytical lenses. The first will be used to develop an account of how conceptual work and theory informs moral practice(s). The second will enable me to trace how moral practices inform ethical thinking.