India. Botswana. Trinidad and Tobago. Three countries on three different continents with, at first glance, little in common. But United Nation’s independent expert Victor Madrigal-Borloz says that in the last two years they have reoriented international law protecting the LGBTQA+ community.
Each of the three decriminalized homosexuality with a legal argument based on an individual’s dignity instead of the right to privacy, which has historically underpinned the effort to eliminate discrimination based on sexual orientation and gender identity.
“They build the legal theory, not on privacy, but on dignity,” Madrigal-Borloz said. “On the notion that being able to live free and equal, according to one’s sexual orientation and gender identity, is an essential part of human dignity. I think this is the reason that I am able to have great optimism in the work that I do.”
Madrigal-Borloz spoke at Northeastern’s School of Law about his work as the United Nations’ first independent expert on the protection against violence and discrimination based on sexual orientation and gender identity. He discussed the new challenges that have arisen and the often uneven progress that has developed.
New issues have come to light as the LGBTQA+ community ages in a way not seen in history. When approaching retirement and elder care, many institutions are unprepared to handle LGBTQA+ individuals and their unique needs.
There are concerns about being forced back into the closet, the long-term effects of medicine used to treat HIV/AIDS, and the dangers of mental deterioration when people feel that it is unsafe to freely express sexual orientation and gender identity.
“Ours are the first generations to face dilemmas associated with large quantities of aging LGBT persons who have forged free and equal lives but now are retiring to environments that remain hostile, ill-equipped to actually cater to their needs,” Madrigal-Borloz said.
In spite of progress around the globe, it is still illegal to be gay in 70 countries, ten of which apply the death penalty anti-gay laws. Additionally, there are 21 countries where it is illegal to be transgender, and at least 23 countries where it is illegal to be a lesbian.
Madrigal-Borloz said that a large part of his work is persuading these countries that it is impossible to align their legislation with the United Nation’s human rights framework. He said his work is made more difficult by populist politicians who stoke anti-LGBTQA+ sentiment to increase political support.
“The argument is played on what is most often populist discourse and in my experience criminalization is most often used in moments of economic crisis or political electioneering,” Madrigal-Borloz said.
He said these countries also allow LGBTQA+ people to fall through the cracks of government assistance, because they are considered expendable, and not respectable members of society.
“In situations of complete exclusion, states refuse to acknowledge individuals as good citizens, as contributors to society,” he said. “In that sense, the key factor is to acknowledge politically, that LGBT persons, that persons of sexual diversity and gender diversity, bring contribution to society.”
Madrigal-Borloz said it can be difficult to overcome the cultural hierarchies that place LGBTQA+ people at the bottom, especially as other factors, such as race and gender, can also influence someone’s experience. He said that makes it all the more important to focus on listening to the community in a given country, instead of having preconceived notions about the best way to forge ahead.
“The fabric of a lived experience gets woven by the threads of race, ethnicity, religion or belief, health status, age and class,” he said. “As one stakeholder referred to me, we hold many identities in one body. And violent actions against a person will often times result from intersecting factors that create a continuum of violence and a dynamic of disempowerment.”
Struggles also arise when progress is not spread evenly across the community, Madrigal-Borloz said. He pointed out how this issue can surface when looking for data on the LGBTQA+ community in a given area. Often there is information about the key population of gay men, but none on lesbians or anyone who identifies as bisexual or pansexual.
Madrigal-Borloz likened it to Stephen Hawking’s theory of spaghettification, according to which a solar system enters a black hole, and the first point of entry is stretched infinitely ahead of the other points.
Madrigal-Borloz said that the LGBTQA+ community and its advocates are like a solar system, and if it falls into a black hole, white gay men are the first to enter and leave the rest behind.
“We cannot fall into a black hole — that is the solution,” he said. “Because if we do what is going to happen is that those that are going to be in the second, third, fourth place are going to be infinitely left behind.”
This event was sponsored by Northeastern School of Law’s Human Rights Caucus, Queer Caucus, Program on Human Rights and the Global Economy, and the Center for Public Interest and Collaboration, as well as the Women’s, Gender and Sexuality Studies program of the College of Social Studies and Humanities.