On Lebanon and the Extension of Universal Human Rights for LGBT+ People

In the summer of 2019, an annual music and arts festival held in Byblos, Lebanon, cancelled a concert by the band Mashrou’ Leila, whose vocalist is openly gay, on the heels of an escalating campaign by Christian groups that demanded the concert’s cancellation.[1] The cancellation stemmed from claims that “the band’s songs ‘offend religious and human values and insult Christian beliefs.’” [2] As a result of these claims, two band members were arrested and interrogated, though later released without charge after pledging to censor their social media content and issue a public apology.[3]This isn’t the first time the band has faced controversy. The group has been twice banned in Jordan and in 2017 “sparked outrage” because crowd members at a Cairo concert waved rainbow flags, a gesture which offended local authorities and led to “Egypt’s biggest crackdown on the LGBT community in years,” resulting in multiple arrests.[4] Following the cancellation of Mashrou’ Leila’s Byblos concert, conversation online and by activists framed the episode as another instance of the Lebanese government censoring activists, journalists, and artists.[5] However, this framing understates what the controversy indicates about the state of LGBT+ tolerance and protections in Lebanon, which has stalled despite notable progress over the last few years. This blog will examine how legal developments in Lebanon mirror the international conversation regarding extending universal human rights for LGBT+ people;  the historic exclusion of LGBT+ rights by the UN; the lack of any legally-binding convention protecting LGBT+ people’s rights; how extending international human rights to LGBT+ people has been stalled by fear of opposition; and how, similarly, Lebanon’s journey toward recognizing and extending rights to LGBT+ people has been stalled by the survival of a neutralized penal code used to persecute LGBT+ people.

Universal human rights were codified following the Second World War in 1948.[6] Three years after the formation of the United Nations (“UN”) in 1945, the founding document of universal human rights, the Universal Declaration of Human Rights (“UDHR”), was created in “recognition of certain fundamental human rights and freedoms.”[7] At the time, Eleanor Roosevelt “hailed it as a ‘Magna Carta for all mankind.’”[8] Charles Malik, Lebanon’s then ambassador to the UN, was a member of the UDHR’s drafting committee. The UDHR was later adopted by Lebanon in 1948.[9] The UDHR’s premise “is that all human beings are entitled to basic inalienable rights,” and although the UDHR is not legally binding, it serves as the basis for modern international human rights law.[10]

Despite the UDHR’s influence and comprehensive scope, the UDHR makes no explicit mention of LGBT+ rights:

“While Article 2 of the [UDHR] asserts  that all  human  beings  are  entitled  to  the  rights  enunciated  in  the document  and  explicitly  states  that  this  entitlement  shall  apply ‘without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,’ no reference is made to sexual orientation.”[11]

 

In fact, the UN General Assembly has adopted no treaties or other instruments which explicitly reference sexual orientation. In the past, conventions have been adopted to promote the elimination of discrimination against racial minorities (in 1965) and women (in 1979), but no international convention “with clear obligations setting out specific rights and obligations regarding the treatment of LGBT people” has been adopted.[12]

Extending universal human rights to LGBT+ people has only recently received formal consideration. Despite prior initiatives brought by UN members, the UN’s first resolution recognizing LGBT+ rights, Resolution 17/19, did not pass until 2011 and did so by a narrow margin.[13] In the resolution, the Human Rights Council (“HRC”) “expressed ‘grave concern’ for acts of violence and discrimination around the globe committed against individuals because of their sexual orientation and gender identity.”[14] The resolution also called upon the UN Office for the High Commissioner for Human Rights (“UNHCHR”) to publish a report to “document discriminatory laws and practices and acts of violence committed against individuals based on their sexual orientation and gender identity.”[15] The UNHCHR report which followed “acknowledged that governments have too often overlooked violence and discrimination based on sexual orientation and identity” and called upon countries to repeal laws and policies used to persecute LGBT+ people.[16] In 2013, the Office of the United Nations High Commissioner for Human Rights (“OHCHR”) responded by forming UN Free & Equal (“UNFE”), a global public information campaign with the goal of promoting equal rights and fair treatment of LGBT+ people.[17] These goals align with those of activists, who have long requested equal rights and fair treatment through the decriminalization of same-sex conduct, freedom of expression and association, rights-based legal gender recognition, and non-discrimination legislation.[18]

Unsurprisingly, the trend toward extending universal human rights protection to LGBT+ people has been met with opposition. “[R]eligious, socio-cultural, and institutional” barriers have been the primary obstacles to any formal extension of universal human rights to LGBT+ people.[19] Some opponents, such as the Organization of the Islamic Conference, have argued that expanding LGBT+ rights is a social and cultural issue rather than a human rights issue and is thus better left to individual states “to address within their social and cultural value system[s].”[20]

In Lebanon, where homophobia is prevalent throughout the population, there has been similar resistance toward recognizing and extending rights to LGBT+ people.[21] Despite being considered more tolerant of LGBT+ expression than other middle eastern countries, Lebanon has continued to discriminate against LGBT+ people and “interfere[] with human rights events related to gender and sexuality,” undermining people’s rights to freedom of assembly, association, and expression.[22]

However, there has been some progress made to protect and extend rights to Lebanese LGBT+ people in recent years. In 2013, the Lebanese Psychiatric Society recognized that homosexuality is not a mental disorder (something the United States declared in 1973).[23] In 2016, the Court of Appeals in Beirut ruled for the first time in favor of transgender right to treatment, “confirm[ing] the right of a transgender man to change his official papers, granting him access to necessary treatment and, importantly, privacy.”[24] In 2017, Lebanon held its first gay pride week. However, since its start, the event has been plagued by setbacks and cancellations; for example, in 2018, pride events were cut short after Beirut Pride’s organizer was detained by authorities and threatened with prosecution.[25] Most recently, in 2018, Article 534 of the Lebanese penal code was neutralized after a district court of appeal in Lebanon ruled that consensual sex between people of the same sex is not unlawful.[26] Article 534, which was inherited from French colonial law, “punishes ‘any sexual intercourse contrary to the order of nature’ with up to one year in prison” and has historically been used to persecute and justify discrimination against LGBT+ people.[27] However, Lebanon has stopped short of repealing Article 534, something that activists, such as Helem (the first LGBT+ rights organization in the Arab world), have long called for.[28] A major goal of LGBT+ activism in the Middle East and elsewhere is to repeal laws used to discriminate against LGBT+ people, such as Article 534, and to decriminalize same-sex conduct.[29]

UNFE has recognized violent attacks, discriminatory criminal laws, discriminatory restrictions on free speech, and discriminatory treatment as the most common forms of human rights violations affecting LGBT+ people.[30] Although there is no legally-binding international convention which extends universal human rights to LGBT+ people, UNFE states international law requires States to take certain steps to safeguard the rights of LGBT+ people, including “[r]epeal[ing] laws criminalizing homosexuality [which] include[es] all legislation that criminalizes private sexual conduct between consenting adults.”[31] UNFE further states that States are required to “[e]nsure that individuals are not arrested or detained on the basis of their sexual orientation or gender identity and are not subjected to any degrading physical examinations intended to determine their sexual orientation.”[32]

In failing to repeal Article 534, Lebanon has effectively stalled its progress toward recognizing and protecting LGBT+ rights. Similarly, the extension of universal human rights to LGBT+ people has been curtailed by the lack of any legally-binding convention or mandate obligating nations to protect the rights of LGBT+ people. Many countries have interpreted international human rights law’s silence regarding rights for sexual minorities to mean “international human rights law does not protect against discrimination on the basis of sexual orientation or even prohibits this protection.”[33]Unfortunately, without a clear and legally-binding convention obligating nations to protect the rights of LGBT+ people, little can be done but to wait and hope.

[1] Lebanon: Festival Cancels Mashrou’ Leila Concert, Human Rights Watch (HRW) (Jul. 31, 2019), https://www.hrw.org/news/2019/07/31/lebanon-festival-cancels-mashrou-leila-concert (last accessed Oct. 23, 2019).

[2] Id.

[3] Id.

[4] Ben Beaumont-Thomas, Mashrou’ Leila concert cancelled after ‘homophobic’ pressure from Christian groups, The Guardian (Jul. 31, 2019), https://www.theguardian.com/music/2019/jul/31/mashrou-leila-byblos-festival-concert-cancelled-after-pressure-from-christian-groups (last accessed Oct. 23, 2019); Jane Arraf, After Crackdown, Egypt’s LGBT Community Contemplates ‘Dark Future’, Jun. 18, 2018, https://www.npr.org/2018/06/18/620110576/after-crackdown-egypts-lgbt-community-contemplates-dark-future (last accessed Nov. 11, 2019).

[5] Lebanon: Festival Cancels Mashrou’ Leila Concert, supra note 1 (“Rights groups… have noted an exponential increase in the use of criminal defamation and incitement laws to arrest, interrogate, and prosecute people who are exercising their right to free speech…Some [journalists and activists] said they have started self-censoring for fear of being called in for interrogation.”).

[6] Bonny Ibhawoh, Human rights for some: Universal human rights, sexual minorities, and the exclusionary impulse, 69 International Journal 612, 617 (2014).

[7] Id.

[8] Id. at 612.

[9] Drafting of the Universal Declaration of Human Rights, United Nations (Jun. 19, 2019), http://research.un.org/en/undhr/draftingcommittee (last accessed Nov. 11, 2019) (“In February 1947, in accordance with a decision from the first session of the Commission on Human Rights (E/259), a group consisting of Eleanor Roosevelt, Pen-Chun Chang and Charles Malik, began drafting the International Bill of Human Rights… Malik was a major force in the debates surrounding key provisions of the [UDHR]. He also played a critical role in explaining and refining some of its basic conceptual issues.”).

[10] Ibhawoh at 613.

[11] Kerstin Braun, Do Ask Do Tell: Where is the Protection Against Sexual Orientation Discrimination in International Human Rights Law?, 29 American University International Law Review 871, 872 (2014).

[12] Id. at 872, 883, 890.

[13] Ibhawoh at 620, Braun at 888.

[14] Braun at 888.

[15] Id.

[16] Ibhawoh at 621.

[17] About UN Free & Equal, UN Free & Equal, https://www.unfe.org/about/ (last accessed Oct. 28, 2019).

[18] Audacity in adversity: LGBT Activism in the Middle East and North Africa, HRW (Apr. 16, 2018), at 6, https://www.hrw.org/sites/default/files/report_pdf/lgbt_mena0418_web_0.pdf (last accessed Nov. 11, 2019).

[19] Ibhawow at 620.

[20] Braun at 891.

[21] Sahar Obeid, Chadia Haddad, Wael Salame, Nelly Kheir & Souheil Hallit, Correlates of Homophobic Attitudes in Lebanon: Results of a Cross-Sectional Study, Journal of Homosexuality 1, 15 (2019).

[22] Laura Boushnak and Mona Boshnaq, Coming Out in Lebanon, The New York Times (Dec. 30, 2019), https://www.nytimes.com/2017/12/30/world/middleeast/lebanon-coming-out.html (last accessed Oct. 28, 2019) (“Although Jordan decriminalized same-sex behavior in 1951, the gay community remains marginalized. Qatar, Sudan, the United Arab Emirates and Yemen all outlaw same-sex relations. In Saudi Arabia, homosexuality can be punished by flogging or death.”); Lebanon: No Justification for LGBT Crackdown, Human Rights Watch (Feb. 11, 2019), https://www.hrw.org/news/2019/02/11/lebanon-no-justification-lgbt-crackdown# (last accessed Nov. 1, 2019).

[23] Boushnak; Eliot Kozuch, #FlashbackFriday—Today in 1973, the APA Removed Homosexuality From List of Mental Illnesses, Human Rights Campaign (HRC) (Dec. 15, 2017) https://www.hrc.org/blog/flashbackfriday-today-in-1973-the-apa-removed-homosexuality-from-list-of-me (last accessed Nov. 11, 2019).

[24] Anealla Safdar, Transgender ruling in Lebanon an ‘empowering’ moment, Al-Jazeera (Feb. 6, 2016), https://www.aljazeera.com/indepth/features/2016/02/transgender-ruling-lebanon-empowering-moment-160206125311413.html (last accessed Oct. 28, 2019).

[25] Rachel Savage, Beirut Pride organizers cancel opening event after threats, Reuters (Sep. 26, 2019), https://www.reuters.com/article/us-lebanon-lgbt-rights/beirut-pride-organizers-cancel-opening-event-after-threats-idUSKBN1WC01B (last accessed Nov. 1, 2019); Saeed Kamali Deghan, Everyone is welcome: the only gay hangout in the Arab world, The Guardian (May 17, 2018), https://www.theguardian.com/world/2018/may/17/beautiful-dream-the-beirut-lgbt-centre-offering-an-oasis-of-tolerance (last accessed Nov. 10, 2019).

[26] Lebanon: Same-Sex Relations Not Illegal, HRW (Jul. 19, 2018), https://www.hrw.org/news/2018/07/19/lebanon-same-sex-relations-not-illegal (last accessed Nov. 1, 2019); Lebanon: Rights Bills Stalled in Parliament, HRW (Jan. 17, 2019), https://www.hrw.org/news/2018/07/19/lebanon-same-sex-relations-not-illegal (last accessed Nov. 1, 2019).

[27] Id; Audacity in adversity: LGBT Activism in the Middle East and North Africa, supra, at 62.

[28] Lebanon: Same-Sex Relations Not Illegal, supra; Helem, Our Helem, Facebook (Jul. 13, 2019), https://www.facebook.com/pg/helemlebanon/about/?ref=page_internal.

[29] Audacity in adversity: LGBT Activism in the Middle East and North Africa, supra, at 62.

[30] Fact Sheet: International Human Rights Law and Sexual Orientation & Gender Identity, UNFE, https://www.unfe.org/wp-content/uploads/2017/05/International-Human-Rights-Law.pdf (last accessed Nov. 1, 2011).

[31] Id.

[32] Id.

[33] Braun at 873.

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