Excerpted From: James D. Wilets, From Divergence to Convergence? A Comparative and International Law Analysis of LGBTI Rights in the Context of Race and Post-colonialism, 21 Duke Journal of Comparative & International Law 631 (Spring 2011) (220 Footnotes) (Full Document)


jameswilletsUnderstanding diverging and converging state approaches towards lesbian, gay, bisexual, transgender, and intersexual (“LGBTI”) rights is particularly important in the international and comparative law context. International law is based on values, traditions, standards, and norms accepted globally, although not necessarily by every culture or country. The process by which international human rights law recognizes certain rights as fundamental is a relatively slow dialectical process. This approach is appropriate for a legal system that seeks a consensus before determining which rights are fundamental to human beings in all parts of the world, inuring to individuals because of their status as human beings and not because they are citizens of a specific country. The Preamble of the Universal Declaration of Human Rights proclaims that the international community's “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” The legal justification under international law for extending legal recognition of same-sex unions becomes more compelling once it is noted that accepting sexual minorities as equal members of society is not specific to only a small number of countries. The arguments for cultural relativism in the context of LGBTI rights are shorn of their power when it is understood that much of the contemporary opposition to gender nonconformity and homosexuality comes not from indigenous practice but largely from modern and predominantly Western phenomena.

Many of contemporary societies are simply remedying the damage wrought by the advent of historically aberrational virulent homophobia associated with Judaism, Christianity, and Islam, imposed on large sections of the world through conquest or colonialism. In large sections of the United States, Christian denominations developed and promulgated a particularly vicious hierarchical view of racial and gender relations to theologically justify the institutions of slavery and apartheid.

Diverging and converging state approaches to LGBTI rights are also important in the comparative law context. Many commentators on LGBTI issues tend to conceptualize LGBTI rights as a linear development flowing from an enlightened Western sociopolitical approach to human rights. This view is inaccurate and undermines both domestic and global battles for LGBTI rights. It undermines the domestic battle for such rights because it locates the struggle for LGBTI rights in opposition to those who view such rights as the recent invention of a secular, humanist human rights movement. It undermines the global battle for human rights because LGBTI rights are incorrectly viewed as a Western construct, hegemonically imposed on the rest of the world. To the extent that people generally perceive homosexuality and sexual minorities as strictly a product of contemporary Western society, people are unlikely to accept that sexual minorities deserve protection in their legal system or in the legal system of the international community of which they are a part.

This Article begins by discussing the attitudes and relative tolerance of the world's indigenous and pre-Judeo-Christian-Islamic societies towards same-sex relationships, with the caveat that societies' tolerance or acceptance of same-sex relationships historically did not necessarily mean tolerance or acceptance of gender-nonconforming relationships. The Article then discusses the expansion of a virulent Judeo-Christian-Islamic and Marxist-Leninist homophobia across much of the world. In the United States, slavery further aggravated this dynamic, which created unique American Christian denominations with a racist theology in order to support the institutions related to slavery or racism. As might be expected, these U.S. religions also adopted a hierarchical view towards gender relations, consistent with the close correlation between racism, sexism, and homophobia.

After the end of colonialism, attitudes towards LGBTI people gradually diverged, with Christian Europe becoming relatively tolerant since it never suffered the effects of institutionalized slavery or colonialism, except as the perpetrators. Meanwhile, the objects of slavery, racism, and colonialism perpetuated, to varying degrees, the uniquely homophobic theology of the Christian European colonizers and Islamic conquerors. The United States gradually became bifurcated, with some states, dominated by apartheid, holding on to their religiously dictated hierarchical views on race and gender, while the rest of the United States largely converged with the societal attitudes of much of Christian Western Europe.

As the twenty-first century enters its second decade, we see a renewed convergence of attitudes towards LGBTI individuals and their relationships. Former colonies such as India cast off their British sodomy laws and South Africa has recognized same-sex relationships. Furthermore, at least some regions of the United States appear to be converging in some respects on issues of LGBTI rights, just as younger generations in the region are also converging, to some extent, with the rest of the industrialized world on issues of race and gender generally.

Rather than simply providing an empirical discussion of those differences that do exist, this comparative analysis will further the understanding of the intersection of race, sex, and gender by identifying those variables that account for divergences and convergences in sociopolitical attitudes towards LGBTI communities. This Article will also explore how converging state approaches to LGBTI rights have been impacted by different “federal” legal systems such as those of the European Union and the United States.


There is substantial evidence that same-sex relationships have existed, and continue to exist, in almost all, if not all, cultures. Perhaps more relevant for the purposes of this analysis, however, is that societal recognition of same-sex relationships has substantial precedent cross-culturally and historically. In in a seminal anthropological study in 1951, Yale professors Clellan S. Ford and Frank A. Beach found that “[i]n 49 (64 per cent) of the 76 societies other than [the United States] for which information is available, homosexual activities of one sort or another are considered normal and socially acceptable for certain members of the community.” Yale historian John Boswell provides extensive documentation that homosexual unions were present, and even sanctioned, in medieval Christian Europe until the Twelfth Century. Same-sex unions and transgendered unions have existed at various times in history in a wide variety of societies, including nineteenth-century Nigerian society; pre-Columbian Native-American societies; nineteenth-century Zuni society; ancient Egyptian, Greek, Roman, and Mesopotamian societies; the African societies of Azande, Siwah, el Garah, Basotho, Venda, Meru, Phalaborwa, Nuer, Bantu, and Lovedu; the Asian societies of Paleo-Siberia, China, Vietnam, India, Japan, Burma, Korea, and Nepal; and in the pre-colonization society in what is now New Zealand and the Cook Islands.

Homosexual relationships have been documented in other ancient societies. Societally sanctioned homosexual relationships existed in ancient Mesopotamian (for example, Hittite, Assyrian, Babylonian), Chinese, Mayan, Incan, Aztec, Egyptian, Etruscan, Indian, Greek, and Roman cultures. Ford and Beach, Greenberg, and other scholars have also documented widespread recognition of same-sex relationships among Native American peoples in North, Central, and South America. The existence of socially accepted transgendered individuals and same-gender sexual relationships in Polynesia has also been documented.

In China, “male homosexuality has a long and documented history,” as does societal recognition of such relationships. A third century B.C. text, Chronicles of the Warring States, describes one of the literary terms for homosexuality:

One of the expressions for male love, longyang, stems from the well-known homosexual relationship between Longyang Jun, a fourth-century B.C. minister, and the prince of Wei. From the Chronicles, too, we know about the affection between Duke Ling of Wei and his minister, Ni Xia. Once, when the two men were taking a stroll in an orchard, Ni picked a peach off one of the trees and took a bite off it. The fruit was so delicious that he offered the rest of it to the duke; a common euphemism for male homosexual love, fen tao zhi ai (literally, “the love of shared peach”), is derived from this account.

The broad and open acceptance of homosexuality in Western antiquity came to an end with the spread of ascetic philosophies such as the Judeo-Christian-Islamic faiths. This was especially true in the context of Catholicism, which has traditionally prohibited all sex outside of procreation.

However, two considerations must be kept in mind when thinking about gender roles both historically and cross-culturally. The first is that a society's conception of gender may not always consist of the rigid, bi-polar “male” and “female” construct prevalent in modern Western society. The Native-American berdaches and Indian hijras documented in the work of Professor Francisco Valdes appear to a Western observer to be transsexuals, when really their identity and “gender” are more complex, consisting of more than four separate gender identities. The second consideration to keep in mind is the role power relationships have in determining a society's definition of gender. For example, a persistent theme in anthropologic evidence regarding same-gender sexual unions is that many cultures treat differentials in class, age, and power as analogous to gender differentiation.

Past recognition of same-sex unions has generally, although not always, occurred within relatively narrow gender constructs that mimicked the dominant-passive construct of “traditional” heterosexual relationships. Thus, those societies that recognized same-sex unions did so only when gender roles were not threatened. Therefore, to the extent societies are uncomfortable with homosexuality, it is usually because such activity is perceived as crossing gender rather than sexual boundaries. Eskridge notes that “[m]ore recent experience reveals a connection between intolerance of same-sex unions and suppression of women . . . .” The Hawaii Supreme Court recognized this correlation when it applied strict scrutiny to the Hawaii marriage law prohibiting same-sex marriage in Baehr v. Lewin. The majority held that Hawaii's marriage law constituted sex discrimination under the State Equal Rights Amendment because it created a classification based on gender and, consequently, prohibited women from doing something (marrying a woman) that men were entitled to do, and vice versa. The Court made an analogy to similar reasoning in the context of race in Loving v. Virginia, involving a miscegenation statute that, on its face, discriminated equally between blacks and whites by prohibiting either race from marrying the other. The court in Baehr conceded that the Hawaii marriage statute was similarly neutral, but because it created a sex-based classification, it triggered strict scrutiny under the Hawaii equivalent of the Fourteenth Amendment. The court implicitly recognized that discrimination against sexual minorities is ultimately based on sex discrimination in that usually the “objectionable” conduct is the gender of the person conducting the act, rather than the act itself. Thus, how a society views gender roles often determines how it treats sexual minorities.

This correlation between discrimination against sexual minorities and societal attitudes towards women is one of the most distinctive patterns emerging from contemporary comparative legal evidence. For example, “Romania [was] one of the last European countries . . . to criminalize homosexual relations. It also had a law that absolves all the individuals participating in a gang rape of a woman if one of the rapists later marries the victim.” Similarly, in the United States, Hamilton County Municipal Judge Albert Mestemaker, citing “traditional American values” (which are frequently used in U.S. political discourse to attack sexual minorities), sentenced a man convicted of domestic violence to marry the woman he physically abused. “On January 29, 1993, Canada granted asylum to a Saudi feminist who, more than coincidentally, comes from a country in which gays and lesbians may be legally sentenced to death simply for their sexual orientation.” The Southern Baptist Convention, one of the most stridently anti-gay religious bodies in the United States, has also formalized the submissive role of women.

In some cultures, women who took on stereotypically male roles were treated like men. This was the case for Ifeyinwa Olinke, a wealthy nineteenth century woman of the Igbo tribe, situated in what is now Eastern Nigeria:

She was an industrious woman in a community where women, who thereby came to control much of the Igbo tribe's wealth, seized most of the entrepreneurial opportunities. Ifeyinwa socially overshadowed her less prosperous male husband. As a sign of her prosperity and social standing, Ifeyinwa herself became a female husband to other women. Her epithet “Olinke” referred to the fact that she had nine wives.

Just as homosexual relations have been historically contexualized within traditional gender concepts, in some societies, male homosexual activity was sanctioned only so long as it occurred between individuals of different classes or generations. In ancient Greece, for instance, “[p]reoccupation with status pervaded sexual culture to the point where the Greeks could not easily conceive of a relationship based on equality. Sex always involved superiority.” There is thus considerable documentation of what we would currently call bisexuality in societies where it was considered appropriate to engage in either sexual relations with women or members of a subaltern class or younger generation, as long as the individual in the socially superior position did the “penetrating.” In the second century A.D., Greek philosopher Artemidorus Daldianus explained this sentiment in his book The Interpretation of Dreams:

[H]aving sexual intercourse with one's servant, whether male or female, is good; for slaves are possessions of the dreamer, so that they signify, quite naturally, that the dreamer will derive pleasure from his possessions . . . . If a man is possessed by a richer, older man, it is good. For it is usual to receive things from such people. But to be possessed by someone who is either younger than oneself or destitute is unlucky. For it is usual to give things to such people. The same holds true if the possessor is older but a beggar.

This view of same-sex relationships mirrored the Athenian view of women generally:

Gender considerations had much to do with this contempt for passivity. The upper-class Athenian family in the classical age was highly patriarchal. Though women managed the household, they were also restricted to it. They lacked all legal personality, were subjected to forced marriage, and were vulnerable to male violence. The relationship between husbands and wives was one of unambiguous domination. In Greek thinking, the family served as a model for all sexual relationships. If in heterosexual couples, the male was active and the wife responsive, then in homosexual couples, the active, insertive partner was male, the passive, receptive partner, female. And to be female was to be inferior to men. For a male to submit to another man sexually was thus to declare himself unworthy of manhood. Aristophanes' complaint about adult men who engage in passive homosexuality is they act like women, something real men should not do.

In the Renaissance and Baroque periods of European history (circa 1400-1650 A.D.), the “powerful tended to prefer their sexual objects subordinated by gender, age, or socioeconomic status.” A homosexual “identity” was avoided by many men in the Renaissance and Baroque periods through categorizing sexual acts “not only by the gender of one's object-choice, but also by the role one performed. As part of a broader effort to demarcate male and female social roles and appropriate gender constructs, contemporary theory drew a sharp distinction between active (masculine) and passive (feminine) sexual roles.” However, “[w]hile adult-youth sex clearly predominated, recent research calls for reexamination of the older assertion that it was the exclusive model, sanctified by Greek precedent.”

A similar call for reexamination of the more traditional assertions regarding the lack of egalitarian homosexual models appears in writings by the Chinese scholar Shen Defu (1578-1642). They indicate that homosexuality among equals was commonplace in, at the very least, the province of Fujian, China: “The Fujianese especially favor male homosexuality. This preference is not limited to any particular social or economic class, but the rich tend to cavort with the rich, and the poor with the poor.”

Earlier discussion in this Article focused on the extent to which societies viewed homosexuality as violating gender role expectations, the history of the elimination of gender role expectations in some societies also deserves attention. As we have seen in Greek, Roman, and other examples, accepting homosexual activity may be highly conditional. Those engaging in homosexual activity may be required to adopt different gender role norms; thus, persons of the same socially constructed gender (and class) may not engage in homosexual activity. This model of homosexual relations does little to validate contemporary same-sex relationships among socioeconomic equals nor does it provide much relief for those individuals who are oppressed because they violate gender norms independent of sexual orientation. For example, there may be a growing acceptance of homosexuality in some contemporary societies based on a growing feeling that homosexuals are “really just like everyone else.” However, if that acceptance only extends to gender conforming gays and lesbians, the ultimate value of that acceptance is lessened. Society then resembles the classical Greek situation where homosexual relationships are only acceptable within very constrained gender roles.

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This Article has demonstrated a correlation among discriminatory attitudes with respect to race, sex, and sexual orientation. Indeed, the divergences among state approaches to LGBTI rights discussed in this article largely track divergences among state approaches to racial and gender discrimination as well.

There also seems to be a correlation between the legal approach towards LGBTI rights of independent, former colonies and the approach in their respective former colonizing countries. Nevertheless, the divergences between the former colonies and their former colonizers and the rest of the industrialized world can also be expected to diminish as the impact of colonialism itself recedes. India is the most recent and dramatic indication that colonial anti-LGBTI laws themselves are gradually being eliminated.

Thus, convergence in state approaches on race and gender discrimination in a post-colonial and post-apartheid era should be reflected in substantial gains in LGBTI rights as well. To a large extent this has happened, with a growing convergence in state policies towards LGBTI rights in South America, Europe, Oceana, and North America.

Even the markedly divergent approaches towards LGBTI issues between the United States and many of the world's industrialized democracies appear to be diminishing to some extent. However, it remains an open question whether the resistance to LGBTI rights of those U.S. states that institutionalized slavery and apartheid will continue to be sufficient to deny LGBTI rights on a national level.

There continues to be a divergence in the legal approach to same-sex relationships among those states that were once British colonies and, to a lesser extent, colonies of other European powers. As noted previously, India has only recently rid itself of its colonial-era laws criminalizing homosexuality, but many former colonies in Asia, Africa and the Caribbean continue to maintain and enforce such laws. This pattern is particularly pronounced in the English-speaking Caribbean and the former British colonies of Africa. This divergence is a product of numerous factors, including the lingering effects of race-based colonialism and the efforts of fundamentalist religious groups in the United States, particularly in states with racist histories, to spread their anti-feminist and anti-gay ideologies.

Nevertheless, the debate in the international community itself suggests that the momentum is on the side of convergence. As UN Secretary General Ban Ki Moon stated in January of 2011, “I understand that sexual orientation and gender identity raise sensitive cultural issues. But cultural practice can not justify any violation of human rights. . . . When our fellow humans are persecuted because of their sexual orientation or gender identity, we must speak out. . . . Human rights are human rights everywhere, for everyone.” And as the High Commissioner stated to the Council during the same session, “[w]e are not trying to create new or special rights. We are simply trying to address the challenges that prevent millions of people from enjoying the same human rights as their fellow human beings just because they happen to be lesbian, gay, bisexual or transgender.”

Professor of Law, Chair of the Inter-American Center for Human Rights, and former Co-Director of the American Caribbean Law Initiative, Nova Southeastern University; M.A. in International Relations, Yale University; J.D., Columbia University School of Law.