Professional Documents
Culture Documents
Advocacy in the US
Julie Mertus
Human Rights Quarterly, Volume 29, Number 4, November 2007, pp. 1036-1064
(Article)
Julie Mertus*
Abstract
This article explores why many advocates concerned with lesbian, gay,
and transgendered (LGBT) rights in the US have not chosen to frame their
struggles in human rights terms. The article recognizes that framing a cause
in human rights terms can be an effective way of claiming the moral high
ground and of asserting affinity with others throughout the world who
seek to condemn human wrongs and promote human dignity. However,
this is not always the case. This article uses a historical review of LGBT
organizing in the US to explain why human rights framings also may be
viewed as unduly restrictive and even detrimental when identity is the
central organizing factor.
* Julie Mertus is an Associate Professor and Co-Director of the M.A. program in Ethics, Peace
and Global Affairs at American University. A graduate of Yale Law School, Professor Mertus has
twenty years of experience working for a wide range of nongovernmental and governmental
human rights organizations. Her prior appointments include: Senior Fellow, U.S. Institute of
Peace; Human Rights Fellow, Harvard Law School; Writing Fellow, MacArthur Foundation;
Fulbright Fellow (Romania 1995, Denmark 2006); and Counsel, Human Rights Watch. Her
book Bait and Switch: Human Rights and U.S. Foreign Policy (Routledge, 2004) was named
“human rights book of the year” by the American Political Science Association Human Rights
Section. Her other books include: Human Rights and Conflict (United States Institute of
Peace, 2006) (editor, with Jeffrey Helsing); The United Nations and Human Rights (Routledge,
2005); Kosovo: How Myths and Truths Started a War (University of California Press, 1999);
and The Suitcase: Refugees’ Voices from Bosnia and Croatia (University of California Press,
1999). In the mid-1990s she served on the Board of Directors of the International Gay and
Lesbian Human Rights Commission (IGLHRC).
Human Rights Quarterly 29 (2007) 1036–1064 © 2007 by The Johns Hopkins University Press
2007 LGBT Advocacy in the United States 1037
I. Introduction
Many advocacy groups turn to human rights language and adopt human rights
strategies because doing so enhances their ability to become more significant
players in international relations and to advance their cause in their home
countries and regions.1 Human rights framings may be particularly advan-
tageous for groups seeking to draw attention to a particular type of wrong
(i.e., deprivation of liberty, denial of access to health care, or discrimination
based on a prohibited ground). In these cases, reference to human rights
triggers the identification of a class of victims, perpetrators, and wrongs for
which relief may be sought. Invoking human rights talk can be an effective
way of claiming the moral high ground and of asserting affinity with others
throughout the world who seek to condemn human wrongs and promote
human dignity.2 Human rights framings thus open doors for advocates, at
both national and international levels, to institutions with common interests
in human dignity, and enhance advocates’ abilities to exercise influence on
norm-violating states.3
For advocacy groups commonly defined not by a particular type of
wrong, but instead by an identity trait, however, the desirability of employ-
ing human rights frames based on this identity trait is less clear. To be sure,
some advocacy groups do accept and even promote traditional identity-
based human rights frames. The decisions of advocates for people with dis-
abilities4 and advocates for migrant workers5 to push for new international
human rights treaties for their particular groups are just two recent cases in
point. However, this article contends that a human rights framing also may
be viewed as unduly restrictive and even detrimental when identity is the
central organizing factor. This article proposes that advocates for lesbian,
gay, bisexual, and transgender rights (LGBT) in the United States provide an
apt illustration of the general reluctance of many advocacy groups to frame
their concerns in terms of international human rights when doing so requires
acceptance of set identity categories. These LGBT advocates do not actively
reject opportunities to advance their concerns at conferences, meetings, and
other domestic or international fora tasked with human rights promotion.
Nonetheless, on the whole, very few LGBT groups in the United States
rely on identity-based human rights framings as their preferred strategy for
promoting social change. This article considers why this is so. Although the
identity group in question throughout this article is “LGBT,” the explanations
suggested in this case may apply to other identity groups that raise similar
concerns about the limitations of human rights framings.
This article is organized in two main parts. First, it begins with a descrip-
tion of the growing worldwide LGBT engagement with international human
rights movements. The dominant organizing strategy for LGBT advocates
on the international human rights stage has been one of assimilation; and,
as this section demonstrates, efforts to gain entry into existing political and
legal international human rights structures have met with considerable suc-
cess. Second, having outlined LGBT experiences at the international level,
the article considers the manner in which LGBT activism has evolved at
the domestic level in the United States. Given that domestic LGBT politics
are overwhelmingly informed by an assimilationist approach that should be
compatible with human rights claims, one would expect that human rights
framings would play a key role in domestic LGBT politics in the United States
today. Yet this decidedly is not the case. The article concludes by offering
some potential explanations for this phenomenon.
6. See, e.g., Amnesty International USA, About LGBT Human Rights, available at http://www.
amnestyusa.org/LGBT_Human_Rights/About_LGBT_Human_Rights/page.do?id=1106573
&n1=3&n2=36&n3=1123. For use of the term “the right to sexuality” see Committee on
the Elimination of All Forms of Discrimination against Women, Consideration of Reports
Submitted by States Parties under Article 18 of the Convention, Sixth Periodic Report of
Nicaragua, U.N. CEDAW, 37th Sess., 762d mtg. (Chamber B), Summary Report, ¶ 8,
U.N. Doc. No. CEDAW/C/SR.762(B) (2007).
7. See Julie Mertus, Applying the “Gatekeeper” Theory of Human Rights Activism: The
Movement for LGBT Rights, Paper presented at the annual meeting of the International
Studies Association, Town & Country Resort and Convention Center, San Diego, Cali-
fornia, USA (22 Mar. 2006). Clifford Bob, Rights Indivisible? Structure and Strategy in
the Emergence of “New” Human Rights, Paper presented at the annual meeting of the
International Studies Association, Town & Country Resort and Convention Center, San
Diego, California, USA (22 Mar. 2006).
8. See International Lesbian and Gay Association (ILGA), About ILGA, available at http://
www.ilga.org/aboutilga.asp; International Lesbian and Gay Association, First Pan African
LGBTI Conference: African LGBTI Activists Meet in Johannesburg and Elect a Regional
Body to Further Advance towards Equal Rights in Africa (23 May 2007), available at
http://www.ilga.org/news_results.asp?LanguageID=1&FileCategoryID=50&FileID=1081&
ZoneID=2.
9. See International Lesbian and Gay Association, supra note 8.
10. See International Gay and Lesbian Human Rights Commission (IGLHRC), IGLHRC FAQ,
available at http://www.iglhrc.org/site/iglhrc/section.php?id=35.
1040 HUMAN RIGHTS QUARTERLY Vol. 29
11. See International Gay and Lesbian Human Rights Commission, What We Do and Why,
available at http://www.iglhrc.org/site/iglhrc/section.php?id=25; International Gay and
Lesbian Human Rights Commission, Introduction to the Asylum Documentation Program,
available at http://www.iglhrc.org/site/iglhrc/content.php?type=1&id=138.
12. U.N. Charter art. 71, signed 26 June 1945, 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153
(entered into force 24 Oct. 1945), available at http://www.un.org/aboutun/charter/index.
html.
13. See Outreach Division, United Nations Department of Public Information (UNDPI), What
Is Consultative Status with the Economic and Social Council?, NGOs and the UNDPI:
Some Questions and Answers, available at http://www.un.org/dpi/ngosection/brochure.
htm.
14. A recent UN fact sheet explains how ECOSOC Resolution 1996/31 revised the arrange-
ments for NGO consultation with ECOSOC:
It standardized arrangements for accrediting NGOs for UN conferences, streamlined the process
of applying for ECOSOC consultative status, and decided that national NGOs would be eligible to
apply. “General status” is granted to large, international NGOs that work on almost all the issues
on ECOSOC’s agenda; “special consultative status” is granted to NGOs that have competence in a
few of ECOSOC’s issue areas; while “roster status” is granted to NGOs which ECOSOC considers
can make occasional useful contributions to its work.
Outreach Division, United Nations Department of Public Information, supra note 13,
available at http://www.un.org/dpi/ngosection/brochure.htm.
15. Wayne Morgan & Kristen Walker, Tolerance and Homosex: A Policy of Control and
Containment, 20 Melb. U. L. Rev. 202, 213–14 (June 1995).
2007 LGBT Advocacy in the United States 1041
16. Id. See Douglas Sanders (International Lesbian and Gay Association), Human Rights
and Sexual Orientation in International Law (17 Jul. 2005), available at http://www.ilga.
org/news_results.asp?LanguageID=1&FileCategoryID=44&FileID=577&ZoneID=7.
17. Id.
18. See generally North American Man-Boy Love Association, available at http://www.
nambla.org.
19. Douglas Sanders, Kurt Krickler & Rodney Croome (International Lesbian and Gay As-
sociation), Non-Governmental Organisations, The ILGA: Finding a Place In International
Law (20 Jul. 1997), available at http://www.ilga.info/Information/international/finding_
a_place_in_international.htm.
20. Press Release, Human Rights Watch, Letter to Secretary of State Condoleezza Rice (25
Jan. 2006), available at http://hrw.org/english/docs/2006/01/25/iran12536.htm. See also
Press Release, Human Rights Watch, United Nations: U.S. Aligned With Iran in Anti-Gay
Vote, Rice Must Explain Repressive UN Ban on LGBT Rights Groups (25 Jan. 2006),
available at http://www.hrw.org/english/docs/2006/01/25/iran12535.htm.
21. Vienna Declaration and Programme of Action, U.N. GAOR, World Conf. on Hum. Rts.,
48th Sess., 22d plen. mtg., part I, U.N. Doc. A/CONF.157/24 (1993), reprinted in 32
I.L.M. 1661 (1993), available at http://www.ohchr.org/english/law/vienna.htm.
22. Report of the International Conference on Population and Development, U.N. Doc.
A/CONF.171/13 (1994), available at http://www.un.org/popin/icpd/conference/offeng/poa.
html.
23. Fourth World Conference on Women: Action for Equality, Development, and Peace,
Beijing Declaration and Platform for Action, U.N. GAOR, 50th Sess., U.N. Doc. A/
CONF.177/20 (1995), reprinted in Report of the Fourth World Conference on Women (1995)
(recommended to the UN General Assembly by the Committee on the Status of Women
on 7 Oct. 1995), available at http://www.un.org/womenwatch/daw/beijing/platform.
1042 HUMAN RIGHTS QUARTERLY Vol. 29
was really two simultaneous meetings: a NGO forum and an official govern-
ment conference. LGBT advocates found ways to exercise influence over
both the nature of the issues raised at the NGO fora and the presentation
of information and lobbying at state levels.
In many respects, the world conferences were a tremendous networking
exercise. LGBT advocates recognized at these conferences that they had
natural allies in the reproductive health advocates who had started fram-
ing their own concerns in terms of a right to sexuality. Prior to 1993, the
concept of “sexual rights” was nowhere to be found in international docu-
ments. Indeed, with the exception of provisions prohibiting discrimination
on the basis of biological sex, matters of sexuality and sex practices were
wholly ignored.24 However, due to the concerted efforts of a vocal and well
organized coalition of women’s rights advocates, references to sexuality
were included in the 1993 Vienna Declaration and Programme of Action.25
Yet, in that document the concept of a right to sexuality was incorporated
only in a negative sense, as in recognition of women’s right to be free from
sexual violence. It was not until the ICPD in 1994 that sexuality would
“begin to sneak into international documents as something positive rather
than always violent, abusive, or sanctified and hidden by heterosexual mar-
riage and childbearing.”26 Significantly, the ICPD platform for action spoke
more positively of sexuality, particularly in its section on “empowerment,”
in terms of the state taking steps for “improving the status of women [and]
enhanc[ing] their decision-making capacity at all levels in all spheres of life,
especially in the area of sexuality.”27
LGBT advocates also learned at the international conferences that
they had many allies in international women’s human rights movements.
To be sure, many advocates for women’s rights were limited by their own
homophobia and were easily manipulated by hate-filled, anti-lesbian pro-
paganda.28 Yet as plans for the 1993 World Conference on Human Rights
in Vienna took shape, many women’s human rights advocates were able
24. See Rosalind Pollack Petchesky, Sexual Rights: Inventing a Concept, Mapping an In-
ternational Practice, in Sexual Identities, Queer Politics 118, 119–20 (Mark Blasius ed.,
2001). See also Yasmin Tambiah, Sexuality and Human Rights, in From Basic Needs to
Basic Rights: Women’s Claim to Human Rights 369 (Margaret A. Schuler ed., 1995).
25. See Vienna Declaration and Programme of Action, U.N. GAOR, World Conf. on Hum.
Rts., 48th Sess., 22d plen. mtg., part I, U.N. Doc. A/CONF.157/24 (1993), reprinted in
32 I.L.M. 1661 (1993), available at http://www.ohchr.org/english/law/vienna.htm.
26. See Petchesky, supra note 24, at 120.
27. Report of the International Conference on Population and Development, U.N. Doc.
A/CONF.171/13 (1994), available at http://www.un.org/popin/icpd/conference/offeng/poa.
html.
28. See Cynthia Rothschild, International Gay and Lesbian Human Rights Commission & Center for
Women’s Global Leadership, Written Out: How Sexuality is Used to Attack Women’s Organizing
(Scott Long & Susana T. Fried eds., 2005), available at http://www.iglhrc.org/files/iglhrc/
WrittenOut.pdf.
2007 LGBT Advocacy in the United States 1043
to set aside their fears and recognize the concerns of lesbians as part and
parcel of women’s concerns. HRW played a considerable role, largely
through its nascent Women’s Rights Project working in the United States in
conjunction with the Center for Women’s Global Leadership (CWGL) (led,
not inconsequentially, by Charlotte Bunch, a woman who made her mark in
the US political scene in the 1970s as a leading lesbian rights activist). The
CWGL-sponsored Global Tribunal on Violations of Women’s Human Rights,
an all-day hearing of women’s testimonies, included as a matter of course
stories of women being beaten and killed in Latin America and stoned to
death in Algeria for not accepting the dominant rules on sexuality and for
living apart from men.29 Interactions among participants at the NGO forum
brought LGBT issues to the attention of many activists for the first time, chal-
lenging misinformation and stereotypes. Although LGBT advocates continued
to face considerable resistance, even from their own human rights peers, it
was clear by 1993 that they had emerged as a potent political force, albeit
still at the margins of the human rights movement.30
The rest of the decade showed substantial progress from the margins
of the movement to the center—or at least to a place much closer to the
center. With their own separate workshops, displays, and speakers, in the
main NGO halls as well as in the “lesbian tent,” and a panoply of workshops
and activities, lesbian activists made an even stronger showing at the 1995
World Conference on Women in Beijing.31 CWGL staged another all-day
tribunal in Beijing, but this time a number of testimonies focused on vio-
lence against women for challenging socially-proscribed sexual norms. For
example, government representatives heard the direct testimony of Palesa
Beverley Ditsie of South Africa, who spoke about the abuses she suffered as
a lesbian, urging, “Anyone who is truly committed to women’s human rights
must recognize that every woman has the right to determine her sexuality
free of discrimination and oppression.”32 The Platform for Action proposed at
29. Center for Women’s Global Leadership, Testimonies of the Global Tribunal on Violations of
Women’s Human Rights (Niahm Reilly ed., 1994). See also Charlotte Bunch & Niamh Reilly,
Center for Women’s Global Leadership & the United Nations Development Fund for Women
(UNIFEM), Demanding Accountability: The Global Campaign and Vienna Tribunal on Women’s
Human Rights (1994).
30. The final text of the Vienna Declaration and Programme of Action did not include les-
bian rights or the “right to sexuality.” See Vienna Declaration and Programme of Action,
U.N. GAOR, World Conf. on Hum. Rts., 48th Sess., 22d plen. mtg., part I, U.N. Doc.
A/CONF.157/24 (1993), reprinted in 32 I.L.M. 1661 (1993), available at http://www.
ohchr.org/english/law/vienna.htm.
31. Press Release, Miranda Johnson (Feminist Majority Foundation), Lesbians Hold Press
Conference For The Curious, Bytes from Beijing (3 Sep. 1995), available at http://www.
feministmajority.net/global/beijing/beij903l.html.
32. Palesa Beverley Ditsie, Statement delivered at the United Nations Fourth World Confer-
ence on Women, Beijing, China (13 Sep. 1995), available at http://www.hartford-hwp.
com/archives/28/014.html.
1044 HUMAN RIGHTS QUARTERLY Vol. 29
33. Fourth World Conference on Women: Action for Equality, Development, and Peace,
Beijing Declaration and Platform for Action, U.N. GAOR, 50th Sess., ¶ 96, U.N. Doc.
A/CONF.177/20 (1995), reprinted in Report of the Fourth World Conference on Women
(1995) (recommended to the UN General Assembly by the Committee on the Status of
Women on 7 Oct. 1995), available at http://www.un.org/womenwatch/daw/beijing/plat-
form.
34. Lisa Bennett-Haigney, Fourth World Conference Empowers Women, available at http://
www.now.org/nnt/11-95/china.html.
35. See Human Rights Education Association, Sexual Orientation and Human Rights, Study
Guides, available at http://www.hrea.org/learn/guides/lgbt.html.
36. Id.
2007 LGBT Advocacy in the United States 1045
AI and HRW, two of the largest and most important international human
rights NGOs, are instructive. By 1979, “AI recognized that ‘the persecution of
persons for their homosexuality is a violation of their fundamental rights.’”37
However, it was only in the early 1990s that AI began to campaign in earnest
against persecution of sexual minorities. In 1991, after contentious debate
among its leaders and membership, AI took the first step of protecting LGBT
“prisoners of conscience.”38 This approach encompassed those whom the state
had jailed or persecuted but failed to address other forms of discrimination
within society. Since the new policy was adopted, AI chapters have staged
letter-writing campaigns for LGBT prisoners in a wide range of countries,
including Cameroon, Uganda, Guatemala, the United States, Turkey, Nepal,
Saudi Arabia, South Korea, and China.39
After AI successfully added LGBT prisoners to its letter-writing campaigns,
LGBT advocates within AI began to push their organization to do even
more. In 1993, AI became the first mainstream human rights organization to
publish a widely circulated monograph on gay and lesbian rights as human
rights. This publication was followed by several other influential topical and
regional reports on LGBT issues.40 Over time, two programs within AI were
added specifically to address LGBT issues: (i) the International LGBT Net-
work,41 and (ii) OUTfront!, AI USA.42 The International LGBT Network sought
to provide a focal point for volunteer activism on LGBT issues and to help
facilitate national networks to share materials, skills, or experience with each
other in order to foster greater AI LGBT presence and visibility. While the
International LGBT Network engaged in international advocacy, OUTfront!
worked within the United States for similar goals: promoting human rights
standards that protect the basic human rights of LGBT people; increasing
public awareness of human rights abuses based on sexual orientation and
gender identity; and working in coalition with LGBT, religious, youth, and
other groups to develop community-based responses to human rights issues
facing the LGBT community. With the hiring, in 2004 to 2006, of a record
37. Decision 7 of its 1979 International Council Meeting. Amnesty International (AI), First
Steps of AI: Coming Out for LGBT Rights, General Info - Gay and Bisexual Issues, avail-
able at http://www.ai-lgbt.org/general_info.htm.
38. Laurence R. Helfer & Alice M. Miller, Sexual Orientation and Human Rights: Toward a
United States and Transnational Jurisprudence, 9 Harv. Hum. Rts. J. 61, 90 (1996).
39. See generally Amnesty International, Actions, available at http://action.web.ca/home/
lgbt/alerts.shtml?AA_EX_Session=62e84f680669165e5adb265e1445e7fe.
40. See Amnesty International, Crimes of Hate, Conspiracy of Silence: Torture and Ill-treat-
ment based on Sexual Identity (2001), available at http://web.amnesty.org/library/pdf/
ACT400162001ENGLISH/$File/ACT4001601.pdf.
41. See Amnesty International, International LGBT Network (ILGBT) of Amnesty International,
General Info - Gay and Bisexual Issues, available at http://www.ai-lgbt.org/general_info.
htm.
42. See Amnesty International USA, OUTfront! Lesbian, Gay, Bisexual and Transgender
Human Rights, available at http://www.amnestyusa.org/outfront.
1046 HUMAN RIGHTS QUARTERLY Vol. 29
number of prominent, openly gay human rights advocates, and the place-
ment of these advocates throughout the organization, AI could be said to
have mainstreamed LGBT concerns. Whether this mainstreaming results in
significant programmatic differences will be determined over time.
HRW, like AI, engaged very little on LGBT issues in the early 1990s.
“We don’t have those people (LGBT) in Africa,” one HRW staffer remarked
in 1993 to the then only openly gay researcher in the organization, who
encountered a range of curious questions and remarks, such as: (i) “How do
you ever find those people? I asked [the local human rights group] to speak
to lesbians [in Russia], and no one came,” and (ii) “Did they know you had
these special interests [i.e., being gay], when they hired you?” In 1996, HRW
finally began reporting on the persecution of gay men and lesbians.43 The goal
of HRW monitoring and reporting—their mainstay advocacy technique—is
to name the abuse being observed as a human rights violation, to blame the
violator for its actions, and then shame the responsible states and other cul-
pable entities into taking corrective action. Illustrating the “gatekeeper model
of human rights” in action—that is, strategic approaches by marginalized
human rights issue advocates to garner the attention and support of leading
mainstream human rights organizations—IGLHRC co-authored two of the
early reports on LGBT rights published by HRW.44 With the aim of influenc-
ing HRW further and establishing a presence in New York City (IGLHRC
then was based exclusively in San Francisco), IGLHRC began renting office
space at HRW in 2000. Within three years, the IGLHRC presence, coupled
with other external and internal pressures, was enough to convince HRW
to open its own Lesbian, Gay, Bisexual, and Transgender Rights Program
(HRW LGBT Rights Program), with its own staff.45 The connection between
IGLHRC and HRW ran even deeper. Scott Long, the director of the original
New York IGLHRC office, soon became the director of the newly-formed
HRW LGBT Rights Program.46
43. See Human Rights Watch, Lesbian and Gay Rights, Special Initiatives, Human Rights
Watch World Report 1997, available at http://www.hrw.org/reports/1997/WR97/BACK-
05.htm#P426_162682. See generally Human Rights Watch, Lesbian, Gay, Bisexual,
and Transgender Rights, available at http://www.hrw.org/lgbt. Reports have included:
Human Rights Watch, Hatred in the Hallways: Violence and Discrimination Against Lesbian,
Gay, Bisexual, and Transgender Students in U.S. Schools (2001), available at http://www.
hrw.org/reports/pdfs/c/crd/usalbg01.pdf.
44. Human Rights Watch & the International Gay and Lesbian Human Rights Commission, Public
Scandals: Sexual Orientation and Criminal Law in Romania (1998), available at http://www.hrw.
org/reports97/romania; Human Rights Watch & the International Gay and Lesbian Human Rights
Commission, More than a Name: State-Sponsored Homophobia and Its Consequences in Southern
Africa (2003), available at http://www.hrw.org/reports/2003/safrica/safriglhrc0303.pdf.
45. See Human Rights Watch, Lesbian, Gay, Bisexual, and Transgender Rights, available at
http://www.hrw.org/lgbt.
46. See Human Rights Watch (HRW), Human Rights Watch Staff, About HRW, available at
http://www.hrw.org/about/info/staff.html.
2007 LGBT Advocacy in the United States 1047
Starting with two full-time staff,47 the HRW LGBT Rights Program has
been able to intervene on a whole range of issues, both legally and through
press releases and letter writing. Interventions have included, for example: (i)
a letter to the Netherlands Minister of Alien Affairs and Integration protest-
ing his proposal to resume expulsions of gay and lesbian asylum seekers
to Iran;48 (ii) a letter to the Guatemalan president urging his government to
take immediate steps to stop a pattern of deadly attacks and possible police
violence against transgender women and gay men and to end impunity for
these crimes;49 (iii) a report documenting and condemning violence against
lesbians in South Africa;50 (iv) and press releases condemning the City of Mos-
cow for attempting to ban a gay pride parade.51 In addition, the HRW LGBT
Rights Program has published substantial reports on Egypt (which resulted
in the release of many men arrested and tortured in a three-year crackdown
against gays in Egypt)52 and Jamaica (which inaugurated a nationwide debate
about sodomy laws, homophobic violence, and HIV/AIDS).53 According to
HRW LGBT Rights Program director Scott Long, they planned reports for
2006 on binational same-sex couples under US law and on persecution of
LGBT people in Turkey.54
The “green light” given by the mainstream human rights organiza-
tions—the “gatekeepers” of the movement—to LGBT issues was enough to
spur other, smaller, yet influential human rights organizations to engage in
and further legitimize LGBT rights as a major human rights issue area. Some
of the organizations thus activated included Human Rights First (formerly
47. As of this writing, Human Rights Watch has added a third person to its Lesbian, Gay,
Bisexual & Transgender Rights Program staff. Id.
48. Press Release, Human Rights Watch, Netherlands: Threat to Return Gay and Lesbian
Iranians: Letter to Minister Verdonk (8 Mar. 2006), available at http://www.hrw.org/eng-
lish/docs/2006/03/08/nether12776.htm.
49. Press Release, Human Rights Watch, Guatemala: Transgender People Face Deadly Attacks
(21 Feb. 2006), available at http://www.hrw.org/english/docs/2006/02/21/guatem12696.
htm.
50. Press Release, Human Rights Watch, South Africa: Murder Highlights Violence Against
Lesbians (3 Mar. 2006), available at http://www.hrw.org/english/docs/2006/03/02/saf-
ric12753.htm.
51. Press Release, Human Rights Watch, Russia: Gay Pride Parade Should Not Be Banned
(27 Feb. 2006), available at http://www.hrw.org/english/docs/2006/02/27/russia12728.htm.
52. Press Release, Human Rights Watch, Egypt: Homosexual Prosecutions Overturned (22
Jul. 2003), available at http://hrw.org/press/2003/07/egypt072203.htm; Press Release,
Human Rights Watch, Egypt: Crackdown on Homosexual Men Continues (7 Oct. 2003),
available at http://hrw.org/english/docs/2003/10/07/egypt6432.htm; Human Rights Watch,
In a Time of Torture: The Assault on Justice in Egypt’s Crackdown on Homosexual Conduct
(2004), available at http://hrw.org/reports/2004/egypt0304/egypt0304.pdf.
53. Press Release, Human Rights Watch, Jamaica: Investigate Murder of Alleged Lesbians
(27 Jul. 2006), available at http://hrw.org/english/docs/2006/07/27/jamaic13869.htm;
Human Rights Watch, Hated to Death: Homophobia, Violence and Jamaica’s HIV/AIDS Epidemic
(2004), available at http://hrw.org/reports/2004/jamaica1104/jamaica1104.pdf.
54. Interview with Scott Long, Director, Human Rights Watch Lesbian, Gay, Bisexual &
Transgender Rights Program, New York, NY (Feb. 2006).
1048 HUMAN RIGHTS QUARTERLY Vol. 29
the Lawyers Committee for Human Rights), Global Rights (formerly the
International Human Rights Law Group), the International Commission of
Jurists, and CWGL.55 Human Rights First, for example, included LGBT hate
crimes in its influential publication, Everyday Fears: A Survey of Violent Hate
Crimes in Europe and North America, released in 2005.56 Global Rights re-
ferred to the human rights of gays and lesbians in its Report on the Regional
Preparatory Conferences of the Americas, released in 2001 before the UN
World Conference against Racism, Racial Discrimination, Xenophobia and
Related Intolerance.57
The attention paid by HRW to the human rights of transgender people
also has improved significantly in recent years. Throughout the history of
the movements for gay liberation, transgender people have faced exclusion
and alienation. Recently, for example, the organizers of the 1993 March on
Washington refused to include the term “transgendered” in the name of the
event (although they included “bisexual”). In 1994 transgendered people
were excluded from the planning of the twenty-fifth Stonewall celebrations
and the Gay Games in New York City.58 The new millennium, however,
appears to be somewhat of a turning point. In more recent years, transgen-
dered individuals and transgender activists have argued and won several
court cases ensuring non-discrimination based on one’s sex as applied to
transgendered people.59 Increasingly, they also are included in gay, lesbian,
and bisexual activist communities.60
61. In 2006 the United Nations Commission on Human Rights was replaced by the United
Nations Human Rights Council. See Office of the United Nations High Commissioner
for Human Rights, Commission on Human Rights, available at http://www.ohchr.org/eng-
lish/bodies/chr/index.htm; Resolution adopted by the General Assembly, U.N. GAOR,
60th Sess., 72d plen. mtg., U.N. Doc. A/RES/60/251 (2006), available at http://www.
ohchr.org/english/bodies/hrcouncil/docs/A.RES.60.251_En.pdf.
62. Views of the Human Rights Committee under article 5, paragraph 4, of the Optional
Protocol to the International Covenant on Civil and Political Rights: Australia, U.N. GAOR,
Hum. Rts. Comm., 50th Sess., U.N. Doc. CCPR/C/50/D/488/1992 (1994), available at
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.50.D.488.1992.En?Opendocument.
See Kristen L. Walker, International Human Rights Law and Sexuality: Strategies for
Domestic Litigation, 3 N.Y. City L. Rev. 115 (1998).
63. Press Release, United Nations, Committee against Torture Issues Conclusions and Recom-
mendations on Report of Egypt, CAT, 29th Sess. (20 Nov. 2002), available at http://www.
unhchr.ch/huricane/huricane.nsf/view01/DC0415E44A8EECC0C1256C77005A7255?Op
endocument.
64. Concluding observations of the Human Rights Committee, Consideration of Reports
Submitted by States Parties under article 40 of the Covenant: Sudan, U.N. GAOR,
Hum. Rts. Comm., 61st Sess., 1642nd mtg., ¶ 8, U.N. Doc. CCPR/C/79/Add.85 (1997),
available at http://193.194.138.190/tbs/doc.nsf/ (Symbol)/bc310a747155dff880256553
00537fae?Opendocument.
65. Concluding observations of the Human Rights Committee, Consideration of Re-
ports Submitted by States Parties under article 40 of the Covenant: Zimbabwe,
U.N. GAOR, Hum. Rts. Comm., 62nd Sess., 1664th mtg., ¶ 24, U.N. Doc. CCPR/
C/79/Add.89 (1998), available at http://193.194.138.190/tbs/doc.nsf/(Symbol)/
05c535a1e953a18880256656003671a7?Opendocument.
66. Norris v. Ireland, 142 Eur. Ct. H.R. (ser. A) (1988), App. No. 10581/83, 13 Eur. H.R.
Rep. 186 (1989); Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (ser. A) (1981), 4 Eur.
H.R. Rep. 149 (1982).
1050 HUMAN RIGHTS QUARTERLY Vol. 29
it was the right to privacy under the European Convention that allowed
advocates to successfully challenge the discriminatory age of consent in
Britain67 and the ban on lesbians and gays serving in the armed forces in
Britain.68 Anti-discrimination law, however, was held to protect a person
who underwent sex reassignment surgery from discrimination on the basis
of sex.69 Notably, in 1999, the European Court of Human Rights also held
that the non-discrimination clause of the European Convention (Article 14),
prohibits discrimination on the basis of sexual orientation.70
These and other successful efforts at international levels have had a
profound influence on NGO organizing around LGBT issues throughout
the world. The human rights framework has proved to be of great strategic
importance for LGBT advocates. In the words of one African legal scholar,
international human rights discourse
brings sexual orientation-based discrimination and persecution, which exists
across cultures in varying degrees, into the global arena. This draws in the inter-
national community, which brings in power to exert influence on governments.
This occurs not only through sanction and shaming, but also through more
subtle processes around the evolution and dissemination of norms. International
attention also encourages civil society actors within countries to address novel
issues and to link them to their existing goals.71
67. See Eur. Comm’n H.R., Euan Sutherland v. United Kingdom (Commission Report),
App. No. 25186/94, adopted 1 Jul. 1997, available at http://www.stonewall.org.
uk/documents/Scan3.pdf. See also Sutherland v. United Kingdom (striking out) [GC],
App. No. 25186/94 (27 Mar. 2001), available at http://cmiskp.echr.coe.int/tkp197/view.
asp?action=html&documentId=697231&portal=hbkm&source=externalbydocnumber&t
able=F69A27FD8FB86142BF01C1166DEA398649.
68. Lustig-Prean and Beckett v. United Kingdom, App. Nos. 31417/96 and 32377/96, 29
Eur. H.R. Rep. 548 (2000); Smith and Grady v. United Kingdom, 1999-VI Eur. Ct. H.R.
45, App. Nos. 33985/96 and 33986/96, 29 Eur. H.R. Rep. 493, n.10 (2000).
69. Eur. Ct. Justice, Case C-13/94, P. v. S. and Cornwall County Council, 1996 E.C.R. I-2143,
[1996] All E.R. (EC) 397, CELEX 694J0013 (30 Apr. 1996).
70. Salguiero da Silva Mouta v. Portugal, App. No. 33290/96, 1999–IX Eur. Ct. H.R. 309,
31 Eur. H.R. Rep. 47 (2001).
71. Sebastian Maguire, The Human Rights of Sexual Minorities in Africa, 35 Cal. W. Int’l
L.J. 1, 21 (2004).
2007 LGBT Advocacy in the United States 1051
The context and content of LGBT discourse and strategies in the United
States has changed over time. Yet two constants have remained. First, the
overwhelming majority of LGBT advocates have framed their struggle in civil
rights terms with little or no reference to human rights. Second, on the level
of strategy and tactics, a struggle has existed between assimilation-oriented
strategies, which seek inclusion into existing institutions and structures,
and oppositional strategies, which advance new priorities and advocate
for alternative discourses within new or significantly revised institutions.
To demonstrate these phenomena, this section explores the predominant
strains in LGBT strategizing in the United States over three eras: the 1970s,
the 1980s, and the 1990s and beyond.
A. The 1970s
For LGBT activists in the United States, the 1970s were marked by a struggle
between assimilation-oriented activists and confrontational strategists. Some
activists made a point of emphasizing their radicalism. They rejected “veterans
of the homophile movement as old-fashioned ‘accomodationists’ and swept
away their organizations, as well as the . . . coalition they had labored to
build.”72 Instead, radical activists endeavored to build new organizations
with more Leftist orientations. The manifesto of one of the most influential
groups of the time, the Gay Liberation Front (GLF), declared itself to be
a revolutionary homosexual group of men and women formed with the realiza-
tion that complete sexual liberation for all people cannot come about unless
existing social institutions are abolished. We reject society’s attempt to impose
sexual roles and definitions of our nature. . . . Babylon has forced us to commit
ourselves to one thing . . . revolution!73
GLF’s actions did not match their revolutionary rhetoric, however. The
main tactic of GLF was in fact consciousness-raising,74 a non-confrontational
and “inward” experience that brought gays and lesbians together to discuss
their experiences, with the aim of “cognitive liberation.”75 Interestingly,
more public and strident actions were undertaken by GLF’s main competi-
72. Eric Marcus, Making Gay History: The Half-Century Fight for Lesbian and Gay Equal Rights
121 (2002).
73. GLF Statement of Purpose, quoted in John D’Emilio & Estelle B. Freedman, Intimate Matters:
A History of Sexuality in America 321 (1988).
74. See A Gay Male Group, Notes on Gay Male Consciousness-Raising, in Out of the Closets:
Voices of Gay Liberation 293 (Karla Jay & Allen Young eds., 1992).
75. Stephen M. Engel, The Unfinished Revolution: Social Movement Theory and the Gay and Lesbian
Movement 43 (2001).
1052 HUMAN RIGHTS QUARTERLY Vol. 29
tor, the Gay Activist Alliance (GAA) which was in tone considerably less
radical. GAA was formed as a counterweight to GLF, as it sought to work
within, rather than outside the system to promote legal and social change.
Through the efforts of GAA and other organizations, protests, “kiss–ins” in
restaurants that refused to serve gay customers, publicized applications by
gay and lesbian couples for marriage licenses, and intense “zaps” against
media establishments that refused to acknowledge the homosexual com-
munity all increased in frequency.76
Ultimately, the main character of the LGBT movements of the 1970s
was liberal in nature, emphasizing the central liberal tenets of the day, for
example, equality, integration, individual self-worth, and self-determination.77
Rejecting society’s attempts to brand them as pathologically abnormal, gay
activists of the 1970s followed the mantra: If Anyone Needs to be Cured,
it is the Oppressors, not the Oppressed.78 Their strategies relied heavily on
collective efforts and solidarity, parades and marches, dances and parties,
and celebrations of their sexuality in public places. As noted in a 1970
article in a San Francisco paper:
A reporter asked why we considered a gay picnic political. We told him that
gay oppression was different from race oppression; that tearing off the mask of
anonymity is the first step in our liberation. And we must take that first step.79
76. Marcus, supra note 72, at 121–22. See generally Toby Marotta, The Politics of Homosexuality
(1981).
77. Engel, supra note 75, at 43. See also John D’Emilio, Sexual Politics, Sexual Communities: The
Making of a Homosexual Minority in the United States 1940–1970, at 224–25 (1983). See
generally Marotta, supra note 76.
78. Dennis Altman, Homosexual: Oppression and Liberation 107 (1971).
79. By Two Lesbians, Christopher Street Liberation Day, Come Out! (Sept./Oct. 1970), re-
printed in Altman, id. at 119–20.
80. Id.
2007 LGBT Advocacy in the United States 1053
81. Ronald Bayer, Homosexuality and American Psychiatry: The Politics of Diagnosis 85 (1981).
82. Id. at 8.
83. Bayer, supra note 81, at 3, 132. See generally D’Emilio & Freedman, supra note 73.
84. See generally Association of Gay and Lesbian Psychiatrists (AGLP), AGLP History, avail-
able at http://www.aglp.org/pages/chistory.html.
85. Bayer, supra note 81, at 193.
86. See generally National Gay and Lesbian Task Force (hereinafter “NGLTF”), available at
http://www.thetaskforce.org.
87. Bayer, supra note 81, at 156.
1054 HUMAN RIGHTS QUARTERLY Vol. 29
B. The 1980s
For many LGBT activists, especially gay men, the 1980s were literally a time
of struggling for survival. The social climate of the 1980s was conservative
and hostile; and a devastating new public health crisis disparately affecting
gay men challenged LGBT activists to provide new leadership and strategies.
The first five cases of a new, untreatable form of cancer were reported by
the New York Times in 1981; and by 1998 over 300,000 people would die
from what would be identified as Acquired Immune Deficiency Syndrome
(AIDS) (210,000 of them being gay men).88 That gay men were dying in
large numbers from a disease that was believed to be transmitted primar-
ily through homosexual sex acts provided fodder for hateful conservatives
who blamed gay men for their own deaths.89 LGBT activists were forced to
respond to a hateful social climate, while also responding to the media’s
abdication of its responsibility. At this time the media did not provide full
and unbiased information on the crisis as it unraveled, and the US health
care establishment failed to provide adequate care for the ill or sufficient
research toward a cure for AIDS.
As they had in the 1970s, LGBT activists again largely turned to self-
help and mutual support to confront the crisis. Numerous community-based
health organizations were formed to offer direct services to people affected
by HIV/AIDS and to promote better information on “safer sex” practices.90
One group begun at the time to fill the gap left by the health care establish-
ment was the Gay Men’s Health Crisis (GMHC), which eventually became
the largest HIV/AIDS service organization in the world.91
As more gay professionals came out and became politically active,
to some extent the entire LGBT movement benefited from their influx of
ideas, resources, and experiences. However, most of the new AIDS-focused
organizations failed to maintain the civil rights agendas of earlier social
movements and groups.92 Moreover, much of the new resources stayed with
HIV/AIDS organizations and did not trickle over to other, more broadly fo-
cused LGBT organizations.93 This could have served to exacerbate tensions
between gays and lesbians, the latter being less likely to be immediately
affected by AIDS. Yet, the AIDS crisis had an opposite impact. The hateful
responses of the Republican Party to the AIDS crisis, and the increasingly
close ties between a misogynist and homophobic “religious right” and the
99. Press Release, Gay & Lesbian Alliance Against Defamation (GLAAD), GLAAD Launches
National Toll-free Alert Line (7 Aug. 1996), available at http://www.uky.edu/StudentOrgs/
QueerInfo/glaad.htm.
100. See generally GLSEN, Inc., the Gay, Lesbian and Straight Education Network, available
at http://www.glsen.org; National Lesbian and Gay Law Association, available at http://
www.nlgla.org; National Lesbian & Gay Journalist Association, available at http://www.
nlgja.org.
101. Engel, supra note 75, at 50. See Urvashi Vaid, Virtual Equality: The Mainstreaming of Gay
and Lesbian Liberation 94 (1995).
102. ACT UP New York, First ACT UP Demonstration, Detailed Scene List and Transcript, Fight
Back, Fight AIDS: 15 Years of ACT UP (compilation of archival video documentation),
available at http://www.actupny.org/divatv/synopsis75.html.
2007 LGBT Advocacy in the United States 1057
103. See Vaid, supra note 101, at 99. See also Human Rights Campaign Foundation, In the
Beginning, There Was a March: 1987, available at http://www.hrc.org/issues/3350.
htm.
104. Id. See generally Margaret Cruikshank, The Gay and Lesbian Liberation Movement (1992).
105. Engel, supra note 75, at 56; Ann Northrup, quoted in Marcus, supra note 72, at 320–
21.
106. Rona Marech, Activists Consider Ethics, Efficacy of Outing, San Fransisco Chronicle, 14
Nov. 2004, available at http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2004/11/14/
MNGF69RDSR1.DTL.
107. Engel, supra note 75, at 56.
108. Id.
1058 HUMAN RIGHTS QUARTERLY Vol. 29
rights organization in the United States that works for gay, lesbian, bisexual,
and transgender equality.
The third-largest gay and lesbian organization in the United States today,
the Gay and Lesbian Victory Fund (GLVF), founded in 1991, focused entirely
on encouraging gays and lesbians to run for political office. Since its found-
ing, GLVF has contributed $2.5 million, through its PAC, to gay-friendly, gay,
and lesbian political candidates.115 By 1994, “there were more than 150 gay
people holding public office nationwide, either through appointment or direct
election.”116 In 2000, the GLVF actively supported thirty-four candidates in
sixteen states; in 2004, the organization supported and funded sixty-four
candidates for political offices in twenty-seven states and more than forty
were elected.117 Although each year the GLVF supports a relatively small
number of political candidates, its strategies and efforts have raised aware-
ness and helped many of their candidates win elections.
Not all LGBT political organizing in the 1990s was of a liberal orienta-
tion.118 One LGBT activist group, the Log Cabin Republicans (LCR), although
founded in the 1970s, worked substantially within the anti-gay political
stronghold of the Republican Party in the 1990s. Advocating “low taxes,
limited government, strong defense, free markets, personal responsibility,
and individual liberty,” LCR also insists that “all Americans have the right to
liberty, freedom, and equality. Log Cabin stands up against those who preach
hatred and intolerance. We stand up for the idea that all Americans deserve
to be treated equal-regardless of their sexual orientation.”119 Thus, draped in
the mantle of republicanism, LCR has taken influential positions on every-
thing from the nomination of judges to the US Supreme Court to the freedom
of lesbians and gays to serve in the US military. In each election, LCR has
supported Republican candidates deemed to be “fair-minded friends,” such
as Senator John McCain (R-AZ).120 The president of LCR, Patrick Guerriero,
defended his organization from criticism within the Republican Party:
115. Bruce Mirken, Vote For Me, I’m Gay, Mother Jones, 31 Oct. 2000, available at http://www.
motherjones.com/news/feature/2000/10/victoryfund.html.
116. Out in all Directions: The Almanac of Gay and Lesbian America 9 (Lynn Witt, Sherry Thomas
& Eric Marcus eds., 1995).
117. Ellen Wright, Lesbian and Gay Candidates Win Elected Office Across the Country, 30
Lesbian News 16 (Dec. 2004).
118. See Troy D. Perry, Why I Believe in Marriage Equality, San Diego Union-Tribune, 14 Mar.
2004, available at http://www.signonsandiego.com/uniontrib/20040314/news_mz-
1e14perry.html.
119. Log Cabin Republicans, What We Believe, About Log Cabin (2004), available at http://
www.logcabin.org/logcabin/about.html.
120. Press Release, Log Cabin Republicans, Log Cabin Republicans Announce 2004 Endorse-
ments (25 Oct. 2004), available at http://online.logcabin.org/news_views/press_102504.
html.
1060 HUMAN RIGHTS QUARTERLY Vol. 29
[T]he reality is that 50 years from now, historians are going to look back at this
moment and ask, what did the leadership of LGBT organizations do? What did
individuals do? And shame on Log Cabin if it doesn’t speak out against bigotry
and intolerance within our own party, and shame on us if we don’t call on our
fellow Gay and Lesbian conservatives to find the courage to come out, particularly
if they are in positions of power in Washington. . . . If every Gay and Lesbian
conservative came out tomorrow morning, the road to full equality would be
a very short one. It would be over in two to five years. If that doesn’t happen,
it’s more likely going to be 15 to 20 years.121
121. Rex Wockner, Interview with Log Cabin Republicans President Patrick Guerriero, Seattle
Gay News, 9 Dec. 2005, available at http://www.sgn.org/sgnnews49/page2.cfm.
122. Ty Moore, Gay-Bashing Still Legit in DC, Justice #35 (June–August 2003), available at
http://www.socialistalternative.org/literature/womensrights/santorum.html.
123. Liz Highleyman, Peace Activism and GLBT Rights, 11 Gay & Lesbian Rev. Worldwide 22,
24 (September–October 2004).
124. Press Release, Gay, Lesbian & Bisexual Veterans of America, Inc. (GLBVA), Gay, Lesbian
& Bisexual Veterans of America, Inc. Release “Lexington Declaration” (20 Mar. 1997),
available at http://www.aver.us/pressrls/97-05.htm.
2007 LGBT Advocacy in the United States 1061
of the Don’t Ask, Don’t Tell, Don’t Pursue policy and a 38 percent increase
in incidents of anti-gay violence, in all arms of the military, including death
threats and physical assaults.125 Throughout the remainder of the decade and
into the beginning of the new millennium, GLBVA relied upon lobbying
and public awareness campaigns (usually in the form of press releases and
reports) to highlight the ineffectiveness of the Don’t Ask, Don’t Tell, Don’t
Pursue policy.
Another development within LGBT movements was an increasing will-
ingness to pursue their objectives through the US judicial system. In the
1990s, LGBT Americans filed countless petitions in local, state, and federal
courts as a means to assert their civil and political rights. Several court deci-
sions proved to be highly relevant to the status and rights of LGBT citizens.
One LGBT organization that carried out prominent legal work during this
era was Lambda Legal Defense and Education Fund (now Lambda Legal),
originally founded in 1986. Lambda Legal pursued test cases “selected for
the likelihood of their success in establishing positive legal precedents that
[would] affect lesbians, gay men, bisexuals, transgender people and those
with HIV.”126 The United States Supreme Court in 1986 upheld Georgia’s
anti-sodomy law in Bowers v. Hardwick, finding that nothing in the Constitu-
tion “would extend a fundamental right to homosexuals to engage in acts of
consensual sodomy.”127 Nevertheless, over the next decade, Lambda Legal
persuaded state courts in Kentucky, Tennessee, Montana, and even Georgia
to strike down anti-sodomy laws and in 2003 convinced the US Supreme
Court to declare these prohibitions unconstitutional.128 In 1996, at the urging
of Lambda Legal, the First Circuit Court of Hawaii found that the state did
not meet its burden of proof in asserting that allowing same-sex marriage
would be harmful to children, families, or any other important public or
governmental interest.129
That same year, Lambda Legal, working with the ACLU and the Colo-
rado Legal Initiatives Project, petitioned the US Supreme Court to rule on a
125. Michelle Benecke & Dixon Osburn, Servicemembers Legal Defense Network, Conduct
Unbecoming: The 4th Annual Report on “Don’t Ask, Don’t Tell, Don’t Pursue, Don’t
Harass,” available at http://www.sldn.org/templates/dadt/record.html?section=22&recor
d=167.
126. Lambda Legal Defense and Education Fund, About Lambda Legal (cir. 1997) (on file
with author).
127. Bowers v. Hardwick, 478 U.S. 186, 192 (1986), available at http://www.sodomylaws.
org/bowers/bowers_v_hardwick.htm.
128. Lambda Legal Defense and Education Fund, Strength, Strategy, Success: Shaping the
Future Since 1973 (5 Feb. 2003) (on file with author). See also Lambda Legal, History,
available at http://www.lambdalegal.org/about-us/history.html; Lawrence v. Texas, 539
U.S. 558 (2003).
129. Baehr v. Anderson, Civil Case No. 91–1394, 1st Cir. Ct., State of Hawaii (1996), avail-
able at http://www.buddybuddy.com/finding1.html. But see Baehr v. Miike, 1999 Haw.
LEXIS 391 (Haw. 1999).
1062 HUMAN RIGHTS QUARTERLY Vol. 29
Colorado state amendment that would have prevented any state legislation
protecting homosexual citizens from discrimination based on sexual orienta-
tion. The Supreme Court ruled against this amendment, citing the Fourteenth
Amendment to the US Constitution.130 Gay & Lesbian Advocates & Defenders
(GLAD), originally founded in 1978 as a non-profit legal rights organization
dedicated to ending discrimination based on sexual orientation, HIV status,
or gender identity, also made legal advances for the LGBT community by
working within the judicial system. In 1998, GLAD appeared before the US
Supreme Court in Bragdon v. Abbott, successfully arguing that all people
with HIV are covered by the Americans with Disabilities Act, whether or
not they show visible symptoms.131
Not all legal attempts by LGBT citizens or organizations were victorious,
however, and the future appears stormy. In August 2004, the Supreme Court
of Massachusetts, a state known for its progressive policies and legislation,
ruled that after a same-sex couple’s breakup, the non-biological partner did
not have an obligation to support the child, even though the court acknowl-
edged that she intentionally and purposefully acted to bring the child into
the world.132 And in April of the same year, the Oregon Supreme Court ruled
that all 3,000 gay marriages that were performed over the previous year in
one county were “null and void.”133 Early in 2006, Florida state legislators
and anti-gay groups proposed a state constitutional amendment (that the
latter has vowed to place on the 2008 presidential ballot) to ban equal mar-
riage rights, permanently block civil unions, and threaten existing domestic
partnership protections.134 The danger of bad law being made through the
courts perhaps has never been greater for LGBT activists than it is in the
United States today. Nonetheless, the assimilation-oriented strategy of litiga-
tion continues to play a prominent role in domestic LGBT organizing.
found their way to the forefront of LGBT domestic strategies in the United
States, which remain assimilation-oriented and informed by a civil rights
model. Perhaps the best explanation for this outcome is simply that domestic
advocates are following a model that has been successful for other identity
groups in the United States, that is the civil rights model. Additionally, for
many Western social change advocates, such as those in the United States,
human rights issues often are associated with gross human rights violations
committed against faraway victims. With domestic courts and other domestic
rights-promotion institutions and mechanisms unreceptive to human rights
frameworks, and disclosing in many instances a cultural resistance to in-
ternational law more generally, a change in this thinking is unlikely to be
forthcoming in the near future.
Another possible explanation for the failure of human rights-based
claims to fully permeate domestic advocacy is the strategy and process
through which human rights claims usually are advanced. The attempt to
frame LGBT concerns in human rights terms largely has centered on sexual
identity categories, without reflecting the self-critique of identity within
LGBT communities that reveals LGBT categories as socially constructed
and contested.135 As one legal scholar noted, “this can be problematic,
as it redefines existing identity categories and may also reflect culturally
specific understandings of sexuality.”136 For those on the receiving end, this
may be extremely repressive. As Frank Browning observed, “A system of
gay-identity politics may well sweep the world, like so much of Western
commercial culture, but it may also prove as repressive and imperial as the
old bigotries already in place.”137 Accepting that gender and sexuality are
socially constructed and fluid would challenge the identity-politics model
that has long been a foundation of human rights activism.
Fitting the claims of aggrieved groups into “essential identities” serves
human rights frameworks structured along these lines and the political
agendas of assimilation strategies. Yet traditional human rights framings do
not accommodate alternative streams in contemporary LGBT politics, which
challenge all forms of essentialism and seek to build identities and cultures
wholly different and apart from existing institutions. The human rights model
appeals to the vast center of LGBT movements, which channel their efforts
through existing political institutions and patterns of discourse, but not to the
more radical elements, on both the right and the left, which use new rhetoric
to press for new priorities in re-imagined political and social landscapes.
135. See Donald Morton, The Politics of Queer Theory in the (Post)Modern Moment, Gen-
ders 121 (Fall 1993); Judith Butler, Gender Trouble: Feminism and the Subversion of Identity
(1990).
136. See Kristen L. Walker, Evolving Human Rights Norms Around Sexuality, 6 ILSA J. Int’l
& Comp. L. 343, 348 (2000).
137. Frank Browning, A Queer Geography: Journeys Toward a Sexual Self 28 (rev. ed. 1998).
1064 HUMAN RIGHTS QUARTERLY Vol. 29
138. Sonia Katyal, Exporting Identity, 14 Yale J. L. & Feminism 97, 175 (2002).
139. David M. Rayside, On the Fringe: Gays and Lesbians in Politics 5 (1988).
140. Id.
141. Petchesky, supra note 24, at 120.
142. Vaid, supra note 101, at 236–37.
143. Id.