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Uneasy Promises: Sexuality, Health, and Human Rights

Although attention to the links between health and human rights is growing globally, the full potential of a progressive human rights approach to health has not yet been explored, and it is even more faintly understood in the United States than in the rest of the world. At the same time, global claims for sexual rights, particularly for those identifying as gay, lesbian, transsexual, or bisexual, are increasingly being made as human rights claims. All of these approaches to rights advocacy risk limiting their own transformative impact unless advocates critique their own strategies. Paradoxically, using health as a way to bring attention to nonheteronormative sexualities can be both helpful and potentially dangerous, especially when coupled with human rights. Recognizing sexuality as a critical element of humanity, and establishing a fundamental human right to health, can play a role in broader social justice claims, but the tendency of both public health and human rights advocacy to normalize and regulate must be scrutinized and challenged. (Am J Public Health. 2001;91:861864)

Alice M. Miller, JD
This commentary highlights some elements of a health and human rights approach to sexuality that might prove useful to health policy and practice in the context of diverse sexualities. At the same time, it perversely unsettles some of those very same concepts. In part, this is to better capture the challenges that those working for global sexual rights, a contentious but increasingly recognized area of human rights work, face on a daily basis. It also suggests that neither human rights nor health should be employed without an examination of the ways in which each concept functions. Finally, it suggests that the process of theorizing and practicing an integrated approach to sexuality by linking the worlds of health and human rights will undoubtedly result in practices and positions that are more than mere sums of our current understanding. A health and human rights approach to sexuality can, if used critically, be part of politically astute and self-conscious coalition strategies. Because of its focus on one category of marginalized personshere, persons of nonheteronormative sexualitiesthis approach can contribute both to reviving calls for social justice in health for the most diverse range of people and to transforming the nature and practice of state accountability in ensuring the conditions in which all persons can be healthy.1 cific way to reach the social justice imperatives of public health work.39 Importantly, much of the work to move beyond the rhetoric of this topic is done outside the United States, since the US government and advocacy movements have a retrograde relationship to human rights claims paradoxically, since the United States claims to be a nation grounded on rights. As the United States currently limits most rights claims to narrowly defined constitutional parameters of nondiscrimination and declines to be bound by the internationally defined, broader obligations, US human rights advocates, including gay rights advocates, are in the difficult position of attempting to participate in efforts to strengthen rights work internationally even as we struggle to initiate rights claims here. Recent global work to develop the concepts of health and human rights includes at least 3 different approaches. One of the first evolved from an examination of the causal links between human rights abuses and health. This approach can encompass the connection between torture because of sexual orientation and its health effects. A second approach searches for the human rights effects of public health practices, such as discriminatory and coercive strategies concerning HIV testing. The third, more comprehensive approach examines the potential synergistic effects between health and human rights; it postulates that promoting and protecting health requires explicit and concrete efforts to promote and protect human rights and dignity.1(p5),2 This approach could take on

Health and Human Rights

As noted by the editors of Health and Human Rights: A Reader, although health and human rights are both powerful, modern approaches to defining and advancing human well being, the field in which they intersect grows slowly.2 The Journal has demonstrated a commitment to exploring the relationship between health and inequalities as key determinants of healthand increasingly, the concept of human rights has functioned here as a speJune 2001, Vol. 91, No. 6

Alice M. Miller is with the Mailman School of Public Health, Columbia University, New York, NY. Requests for reprints should be sent to Alice M. Miller, JD, Law and Policy Project, Mailman School of Public Health, Columbia University, 60 Haven, B-2, New York, NY 10032 (e-mail: am808@ This commentary was accepted February 23, 2001.

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the many complicated ways that discrimination on the basis of sex, race, sexual orientation, HIV status, age, or disability, for example, affects health status. It could include scrutiny into how intersecting discriminations, as in sexualized forms of race discrimination, affect health, or the right to health, which is a fourth aspect of the healthrights juncture introduced below. The formal system of rights work asserts entitlements as legal obligations and thus as tools for political and legal accountability. But one strength of human rights work is that it meshes formal treaty doctrines with grassroots activism and critiques of power, the legitimate territory of those who make political demands about basic justice.10 Key principles that underlie both formal and informal rights work, and that have special relevance to a health and human rights approach to sexuality, are the primacy of nondiscrimination and equality, a focus on the dignity of the person, the understanding that all rights are interconnected and interdependent in their realization, and the participation of individuals and groups in the determination of issues affecting them. In addition, while rights are almost never absolute, the limitations imposed on their exercisesome rights, for example, can be limited in the interest of public healthmust be strictly scrutinized for such features as excessive breadth, arbitrariness, and effectiveness. In 1994, an authoritative opinion was issued by the Human Rights Committee, the group of United Nations experts that reviews the implementation of the International Covenant on Civil and Political Rights (to which the United States has bound itself). This opinion stated that the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of HIV/AIDS.11 They stated that the invasion of privacy and the discriminatory impact of Tasmanias sodomy laws could not be justified by reference to public health needs. In addition, human rights obligations include a tripartite ordering of governmental responsibility. Governments are required to respect rights (the state and its agents must not through their own actions violate rights), protect rights (the state must organize all branches to ensure that no other entityprivate person or corporationabuses human rights), and fulfill rights (the state must also ensure that its actions, at all levels, make the enjoyment of rights possible). In the case of (sexual) health, obligations to fulfill rights could be met through taking steps to ensure that mechanisms are in place that adequately respond to epidemic diseases such as HIV/AIDS or by setting in place the infrastructure for an open and diverse society for example, by ensuring that gay and lesbian
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advocacy groups can carry out health advocacy without legal strictures or fear of violence. These principlesas part of legally binding treaties and as critical ways of demanding accountability locallyare key components of health and human rights arguments. But, just as critically, the formal system of rights establishes health itself as a human right. The International Covenant on Economic, Social, and Cultural Rights, which the United States has signed but not ratified, states in Article 12 that States Parties . . . recognize the rights of everyone to the highest attainable standard of physical and mental health.12 Other treaties either require guarantees of the conditions for health or focus on nondiscrimination in health services. Note that this is not a utopian guarantee to the right to be healthy, but rather an obligation to create the conditions of health. It functions as any other rights claim, not as a magic grant of health but as a tool for demanding attention, for compelling action. The specific, useful actions to build health must be developed locally, whereas the right to make the claim is global. Contextualized understandings of steps required for health have developed in tandem with a conceptual framework stressing the interrelated nature of the enjoyment of rights. This framework examines the ways that the enjoyment of various rights must work together to make any right real. For example, if the human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence,13 a range of rights is needed. They include rights such as nondiscrimination, freedom of information, protection of physical integrity (freedom from torture, liberty, and security of the person), the right to enjoy the benefits of scientific progress, the right of individuals and groups to participate in issues affecting them, and the right to equal protection by the law. Through a strategy of interconnected rights claims, advocates have transformed bundles of existing legal obligations into claims for sexual rights.

Building Sexual Rights Inside the Developing World of Human Rights

Human rights claims regarding sexualityincluding claims of broadly defined sexual rights, more narrowly tailored sexual health rights, and identity-based rights such as lesbian rights or transsexual nondiscrimination rightsare being made in many places worldwide. Human rights activism aimed at building new norms for sexual rights has occurred

in world conferences, in treaty-based strategies of reporting and submitting complaints, and in national invocations of regional and international rights standards. It has taken such forms as (1) combating state violations against persons based on their sexual orientation (classic human rights); (2) establishing the conditions for sexual health in the context of womens reproductive health (feminist health rights); and (3) opposing discrimination based on sexual identity and practice and demanding access to health care in the context of the global HIV/AIDS pandemic (a fusion of the violations approach and the conditions-of-health approach).1416 But a critical review of these strategies reveals that they cannot by themselves encompass the wide range of sexual orientations, practices, and identities among persons of marginalized sexualities. Many strategies mobilize sexual and other identities as part of visibility movements, often promoting the idea that specific sexual identities are constitutive of universal and ahistorical (or unchanging) minority groups or are immutable identities that ought to be protected under human rightsbased antidiscrimination norms. These strategies are in tension with the scholarly work that deconstructs identities according to specific historical processes. And they engage us with the real political question of whether it is possible to deconstruct and defend sexual identities at the same time, particularly in regard to the operation of state power. The nearly total silence regarding sexual orientation and named sexual identities has begun to end internationally, but to what effect? Some of the most powerful and comprehensive claims to sexual rights have arisen out of the politically charged but historically connected venues addressing health, womens rights, and lesbian existence. However, the gains have been limited, and it has been difficult to connect the gains made within the already marginalized world of womens health rights with the world of mainstream human rights. In addition, these world conferences are moments of political and programmatic commitment, but they do not establish new legal rights. In 2000, the committee that oversees the implementation of the International Covenant on Economic, Social, and Cultural Rights issued an authoritative statement on state obligations with regard to health and included an important, first-ever reference to sexual orientation in this kind of general interpretation. Notably, this statement is also applicable across sex, race, and age and other identities. General Comment 14 reads in part:
The Covenant proscribes any discrimination in health care and underlying determinants of health, as well as the means and entitle-

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ments for their procurement, on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation, and civil, political, social or other status, which has the intention or effect of nullifying or impairing the equal exercise of the right to health [italics added].17

The committee authors crafted their understanding of discrimination in health to include not simply discrimination in health care but the underlying determinants of health. Through this short phrase, the committee opened up the possibility that the entire treaty could be used to evaluate governmental obligations to end discrimination on sexual orientation as it affects health. They did this by applying the full range of state obligations toward responding to differences in health status in the population; among the differences states must pay attention to and ameliorate are those linked to sexual orientation. And, once it is aware, the state has the legal responsibility to take steps to remedy the situation.

rights approach should constantly relink sexual health to the many social determinants, such as occupational environment, job and social security, poverty, housing, and education, factored across other key variables, such as race and sex, that affect health status. While access to health care does not equal good health, good health nonetheless requires available, accessible, acceptable, and quality health services. Finally, concepts of sexual health and healthy sexuality have dangerous tendencies to slide from denoting sexual behaviors carried out without coercion, violence, or exposure to disease to connoting normal, naturalized sex, and creating a hierarchy that excludes diverseor to some, perversesexualities.23

steps may in the long run impoverish the richness of human sexuality. The work to create the conditions by which all persons can develop and enjoy their full personality as the Universal Declaration of Human Rights would have italone, in love, in lust, and in communityreturns us to 2 core challenges. First, health, including sexual health, needs to be resituated in social justice and the broader social transformation of society. Second, as you cannot diversify what you have not yet established, building rights for sexual diversity must begin with broad-based efforts toward a core rights claim for sexuality as a key aspect of all human beings and a worthy object of transformed rights work.

Taking Sexual Rights Beyond (Homo)sexual Orientation

In this commentary, the term sexuality has deliberately been used to encompass diverse sexualities, including the variety of identities, gender constructs, orientations, practices, and the meanings attached to each of these aspects, with full recognition that identity and practice do not line up neatly in our lives. In part, this formulation seeks to recognize the new work on sexuality as socially constructed, a theory and practice of scholarship that refocuses attention away from a biomedical, naturalized model of sexuality toward understanding the specific historical processes that produce different sexualities.24,25 This formulation runs numerous risks: burying nonnormative sexualities by integrating them into the discourse before their specific configurations are fully elaborated, or failing by exceptionalizing only homosexuality. Experience shows that reference to sexual orientation does not conjure up heterosexuality, which thus escapes analysis of its construction and challenges to its privileges, just as references to race tend, in a racist society, to be heard as a cover for Black and leave the position and privilege of White women and men underanalyzed. Experience also shows that the dominant analysis of (homo)sexuality tracks a culturally produced form of male homosexuality and fails to capture the gender specificities of lesbian lives, in particular, and of the lives of many other nonnormative men. This commentary has addressed the dangers and benefits of the fact that the most progressive formulations of how and where sexuality might fit within traditional human rights obligations have arisen in health contexts. While acknowledging the benefits of this approach, we cannot rest with health as the full universe of sexuality, nor with (homo)sexuality as the sole focus of human rights claims to sexuality, as these immediately progressive

Many of the ideas for this commentary have been developed in the seminars hosted by the Program for the Study of Sexuality, Gender, Health, and Human Rights under the direction of Carole S. Vance at the Joseph L. Mailman School of Public Health, Columbia University and funded by the Rockefeller Foundation. In addition, the author owes a great debt to the current work of Sofia Gruskin and the influential work by Jonathon Mann at the Francois-Xavier Bagnoud Center for Health and Human Rights at Harvard Universitys School of Public Health. Their work and ideas greatly condition much of the thinking behind this commentary.

Is Health Safe for Sexual Rights?

Health cannot be presumed to be a benign site for sexualityespecially homosexuality. In addition to the history of medical and psychologic interventions that oppress lesbians, gay men, and bisexual persons, including the very naming of homosexuality as a disease, and the complicated relationship between transsexuality and medical intervention, numerous scholars have pointed out the dangers of the urge to medicalize talk about sexuality.18 First, even progressive strategies for better care and services for persons of disparate sexualities must face the reality that medicine can also function as a regime of control, alone or in partnership with law, including criminal laws and public health legislation.19,20 Next, talking about sexuality within the context of health does not imply that all of the demands of sexuality are encompassed within the domain of health. Focuses on sexual health as a strategy to develop and claim sexual rights have been important, and many gains have arisen from this approach. Nonetheless, although it appears politically tempting to claim more aspects of sexual rights through this approach (as it sidesteps certain condemnations based on religion, culture, or morals), we should be wary of overmedicalizing a constellation of social and biological processes that encompass domains of imagination, expression and communication, law, religion, and economics, as well as the body.21,22 Conversely, because ones sexuality is not the only aspect of identity or behavior affecting health status, a sexual health and
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