Homosexuals

The terms homosexuality and homosexual were coined by Karl Maria Kertbeny, a German-Hungarian journalist, in 1868 to describe sexual relations between individuals of the same sex. Such relations have existed throughout history and have often fallen under social scrutiny. Much of modern history has witnessed persistent discrimination against homosexuals, in some cases leading to persecution and crimes against humanity.

Image of Homosexuals in History

Attitudes toward homosexuality have fluctuated greatly over time. Examples of homosexuality can be found in religious texts dating back to the third and fourth century bce, such as the Kama Sutra and other Eastern Tantric texts. This recognition of same-sex relations suggests that tolerance toward homosexuality has deep historical roots. In modern India homosexuality is tolerated as long as it does not interfere with the institution of marriage. The individuals who suffer discrimination are those who refuse to adhere to social pressures and instead lead openly homosexual lives. Although in China homosexuality is now legal, homosexuals suffered discrimination under the Qing government in 1740. The regulations that emerged were in response to homosexuality becoming an accepted way of life, one explored openly in literature of the time. The subsequent political reaction fueled a social intolerance that still exists in the early twenty-first century.

Western culture during the Greco-Roman period of history is laden with expressions of same-sex sexual desire. In general, society accepted such sexual activity as long as those involved adhered to accepted social conventions. This situation changed with the growing influence of Christianity, which referred to the story of Sodom in Genesis 18 and 19, and other biblical sources banning same-sex sexual behavior.

Between the fall of Rome and the beginning of the Renaissance, the rule of the Roman Catholic Church dominated Western views condemning homosexuality or any other sexual act not performed for the purpose of procreation. This era witnessed a significant increase in the persecution and execution of suspected "sodomites" (which included anyone who engaged in any act of sexual or social deviance). After the Protestant Reformation same-sex relations were still considered a sin and states began passing harsher statutes punishing sodomy as a crime. These convictions, primarily in Europe, reached their peak between 1750 and 1830, turning into social hysteria and leading to a relatively large number of arrests and executions.

Severe discrimination gave birth to a distinct identity based on sexual expression and desire. A new, more specific category of "homosexual" emerged during the Victorian era when a medical definition was assigned. The concurrent social discrimination paralleled an increase in self-identity and community awareness, as well as a desire by homosexuals to become socially recognized. Self-expression through literature blossomed during this era.

Discrimination against homosexuals in Europe and both North and South America took on a new and more virulent form from the late 1930s through the 1960s. In Germany the widespread acceptance that homosexuals had experienced under the Weimar Republic (especially in Berlin) was shattered during the Nazi regime. The Nazis employed a range of increasingly severe measures to repress homosexual conduct, including surveillance, registration, incarceration, medical experimentation, and, ultimately, extermination. Although female homosexual conduct was not expressly proscribed or as actively repressed by the state, lesbians suffered persecution as well. After World War II during the McCarthy era, homosexuals in the United States fell under increasingly severe pressures to conceal their identity. Those who refused risked alienation and, in many cases, loss of livelihood. Such social pressures gave rise to political and social organizations in both the United States and Europe throughout the 1950s and 1960s.

In the early twenty-first century a patchwork of laws and varying degrees of social acceptance exist throughout the world alongside mainstream television programs and other media forms that encourage social integration. These vastly different approaches reflect the great divergence of views about homosexuality and same-sex sexual conduct. In many parts of the world homosexuality is increasingly seen as a legitimate identity, with same-sex sexual behavior being a natural consequence of that identity. Among other groups, including major religious institutions, same-sex sexual attraction is seen as disordered and same-sex sexual conduct as a destructive aberration.

Legal Regulation: Prohibition and Protection

The legal position of homosexuals varies significantly from country to country—from constitutionally entrenched freedom, from discrimination on the basis of sexual orientation, to laws that make homosexual acts punishable by death. Even among countries where all individuals are guaranteed a standard of equal treatment, controversies remain over whether homosexuals should be protected as such. One example is the continuing debate in the United States over hate crimes legislation and the inclusion of sexual orientation as grounds for that kind of criminal charge. Another example is the wide range of contemporary responses to same-sex marriages, partnerships, or civil unions.

Until very recently no legal protection on the basis of sexual orientation could be found at the international level. Although the horrors of World War II gave rise to significant advances in the protection of individuals and identifiable groups under international law, such protection did not extend to homosexuals. Notwithstanding the mass execution of homosexuals during World War II, there is virtually no mention of this victim group in the judgment of the International Military Tribunal at Nuremberg. Nor did homosexuals find protection in the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, an instrument drafted on the heels of World War II and designed to protect groups from discriminatory annihilation. The continuing lack of protection for homosexuals as a group likely flowed, at least in part, from the belief that homosexuality is not intrinsic or fundamental to one's identity, but that it is simply a matter of aberrant behavior which cannot be justifiably regulated. Indeed for many years, the leading psychiatric diagnostic manual listed homosexuality as a mental illness, greatly influencing public opinion.

While international criminal law evolved little during the cold war, it gained renewed vigor following the establishment of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) in the mid-1990s. Despite the great strides in jurisprudence these institutions made, such developments did little to advance the legal protection of homosexuals. The Rome Statute of the International Criminal Court (ICC), adopted in 1998 and in many ways reflecting the culmination of international developments, fails to make any reference to sexual orientation. Indeed, the term gender, included as one of the grounds for the crime of persecution, is expressly defined as "the two sexes, male and female, within the context of society." The definition continues, "The term 'gender' does not indicate any meaning different from the above," in an apparent attempt to prevent the interpretation of gender from including sexual orientation (Rome Statute, Article 7[3]). Although the definition of persecution includes the residual phrase "or other grounds that are universally recognized as impermissible under international law," the use of "universal" could prevent the ICC from interpreting this phrase to include sexual orientation given the lack of consensus noted above.

Similarly, international human rights law has been slow to afford protection from discrimination on the basis of sexual orientation. The nondiscrimination provisions of the major human rights treaties make no mention of sexual orientation. Nevertheless, advances have been made through the jurisprudence of international human rights mechanisms. The earliest developments were grounded in the right to privacy, encompassing such matters as the decriminalization of same-sex sexual conduct, but failing to extend into public life.

Over time, however, the conceptual framework employed by human rights mechanisms has shifted from one grounded in privacy to one based on nondiscrimination. For example, the Human Rights Committee, the treaty body charged with monitoring implementation of the International Covenant on Civil and Political Rights, has found that "the reference to 'sex' in [the nondiscrimination provisions of the Covenant] is to be taken as including sexual orientation" (Toonen v. Australia, para. 8.7). While the Human Rights Committee ultimately grounded its decision in that case on the right to privacy, its reference to and interpretation of the nondiscrimination provision marked a significant turning point in the protection of homosexuals as such. Similar advances have been made among regional human rights mechanisms, particularly in Europe.

Even within the European human rights system, though, the scope of protection from discrimination remains limited. The European Court of Human Rights ultimately found that France's refusal to authorize the adoption of a child by a single gay man, a decision "based decisively on the latter's avowed homosexuality," was not discriminatory under Article 14 of the European Convention on Human Rights (Fretté v. France, para. 43).

Nonetheless, a clear trend exists within human rights law toward greater protection of homosexuals as a group. This trend is also reflected in the domestic sphere. For example, within the context of refugee law, domestic courts in many countries are increasingly granting asylum on the basis of persecution against homosexuals as a social group.

SEE ALSO Holocaust; Identification; Persecution

BIBLIOGRAPHY

Boswell, John (1980). Christianity, Social Tolerance, and Homosexuality. Chicago: University of Chicago Press.

Fone, Bryne (2000). Homophobia: A History. New York: Metropolitan Books.

Fretté v. France. Case No. 36515/97, European Court of Human Rights (February 2002).

Grau, Günter, ed. (1995). Hidden Holocaust? Gay and Lesbian Persecution in Germany 1933–1945. London: Cassell.

Human Rights Committee (1992). Views on Toonen v. Australia. Communication No. CCPR/C/50/D/488/1992.

Joseph, Sherry and Pawan Dhall (2000). " 'No Silence Please, We're Indians!'—Les-Bi-Gay Voices from India." In Different Rainbows, ed. By Peter Drucker. London: Millivres Ltd.

Ng, Vivien W. (1989). "Homosexuality and the State in Late Imperial China." In Hidden from History: Reclaiming the Gay & Lesbian Past, ed. Martin B. Duberman, Martha Vicinus, and George Chauncey, Jr. New York: Nal Books.

John Cerone
Jason Bricker