In Search of a Queerer Law: Two People’s Tribunals in 1976

ABSTRACT

In 1976, two people’s tribunals took place which considered issues relating to non-normative sexuality. ‘People’s tribunals’ are civil society initiatives that assert a popular jurisdiction which operates outside of both the state and international institutions. In Brussels, there was the International Tribunal on Crimes against Women, which treated ‘compulsory heterosexuality’ as a crime. On the other side of the world, in Sydney, there was the Tribunal on Homosexuals and Discrimination. These people’s tribunals are sometimes treated as forerunners to later developments relating to lesbian, gay, bisexual, transgender and intersex (LGBTI) rights in international law. In this paper, by contrast, I engage in a queer reading of the Brussels and Sydney Tribunals, whereby I consider how the legal framings and procedures adopted by the two tribunals diverged from the LGBTI rights framework that would later develop. In doing so, my aim is to shine a light on alternative, queerer legal possibilities, as well as to open up a conversation about using people’s tribunals as a mode of queer activism into the future.

KEYWORDS:

• Queer Theory
• People's Tribunals
• International Human Rights Law
• Sexuality Rights

1. Introduction

For many queer theorists and legal scholars who think with queer theory, the international human rights framework that has developed in relation to non-normative sexuality has been a disappointment. While the gradual bestowal of sexual rights on lesbian, gay, bisexual, transgender and intersex (LGBTI) people is often seen as preferable to outright exclusion, there is a sense, as Kapur puts it, that ‘queer engagement with human rights has taken the radicality out of queer rather than resulting in the queering of international human rights.’¹ In particular, queer thinkers have been critical of the way the LGBTI human rights framework has excluded people with fluid, non-binary or non-Western sexualities,² reinforced a neoliberal sexual politics,³ and contributed to the development of a prescriptive ‘Gay International’.⁴

For some, the problem lies in the human rights paradigm itself, which is oriented towards normative boundary-making. As Thorseson writes, ‘[a]dvancing LGBTI human rights involves implicitly or explicitly advancing particular views about who counts as a human’.⁵ For others, the de-radicalising effect of LGBTI human rights is the result of the legal framings that have been adopted within the human rights paradigm. For example, a heavy reliance on the right to privacy in sexuality-related cases is regarded as having contributed to the continuing ‘exclusion of nonnormative sexualities from the “world of public intimacy”’,⁶ and a politics of gay respectability. For yet others still, the disappointment of LGBTI human rights lies in the institutions enacting and enforcing that legal framework, which are associated with heteronormative state power.⁷ The state is considered ‘heteronormative’ insofar as it is organised around systems of birth, sex and marriage registration which enforce the gender binary, monogamy, and heterosexuality.⁸

In this article, I go in search of a queerer legal imaginary through an exploration of two people’s tribunals that took place in 1976. ‘People’s tribunals’ are civil society initiatives that assert a ‘popular jurisdiction’ which operates outside of both the state and international institutions.⁹ The first is the International Tribunal on Crimes against Women, which was held in Brussels in March 1976; the second is the Tribunal on Homosexuals and Discrimination, which took place in Sydney in November 1976. These tribunals present productive sites for exploring queer alternatives to contemporary international legal arrangements for two reasons.¹⁰ First, they both occurred before the protection of non-heterosexual subjects entered international law via the European Court of Human Rights’ 1981 decision in Dudgeon v. the United Kingdom.¹¹ This means the legal framings they adopted were not yet shaped by the discursive landscape of the LGBTI human rights framework, offering a window into different legal possibilities. Second, they both took place outside of the state and state-based international law, rendering them less vulnerable to propping up state and state-affiliated power, as well as more open to queer procedures.

What emerges from my exploration of these two tribunals is a picture of a legal imaginary – or, more accurately, multiple legal imaginaries – that could provide hope to queer thinkers disappointed by the international LGBTI human rights framework. I argue that, when read through a queer lens, both tribunals offer a repository of legal framings, structures and procedures that are more open to diversity, pluralism and emotion than the contemporary international legal framework and are therefore more compatible with queer theory. Retrieving these legal alternatives could provide impetus for reimagining international law in queer directions in the present.

This article begins by providing some background information about the two people’s tribunals under analysis and the historical context from which they emerged. It then turns to a queer reading of the two tribunals. First, I examine the different legal framings adopted by each tribunal and the articulations of sexuality those framings invited. Second, I explore the structure and procedures of each tribunal and how they differed from those of ‘official’ international courts and tribunals. In the final section, I conclude by reflecting on how the tribunals’ alterative legal imaginaries could serve as a source of inspiration for those engaged in the project of ‘queering’ international law. I also initiate a conversation about using people’s tribunals as a mode of queer legal activism into the future.

2. Setting the Scene: People’s Tribunals in the 1960s and 1970s

To understand the emergence of the two tribunals under analysis in the mid-1970s, it is necessary to go back further to the politics of the 1960s. This was a time when a growing number of young adults, increasing rates of university attendance, and dissatisfaction with the Cold War status quo had combined to produce a new language of dissent in the West, aimed at the institutions and assumptions of the post-war years.¹² Social movements sprung up across Europe, North America and Australia, contesting not only the imperialist and authoritarian tendencies of the capitalist state, but norms of the nuclear family, traditional gender roles and sexual morality as well.¹³ The brutality of the Vietnam War led many to question Cold War divisions of East/West and ‘developed’/‘developing’,¹⁴ producing a new sense of anti-authoritarian international solidarity.¹⁵ And an increased scepticism of hierarchy and institutional authority saw many people turn away from the revolutionary politics of the so-called ‘old left’, which held that radical change could only follow the seizure of state power, and embrace a politics of prefiguration instead, whereby activists set about performing in the present the world they wished to create.¹⁶

It was against this backdrop of Cold War disillusionment, international solidarity and prefigurative politics that philosophers Bertrand Russell and Jean-Paul Sartre convened the International War Crimes Tribunal or ‘Russell Tribunal’ in Sweden and Denmark in 1967 to investigate US war crimes in Vietnam. Their aim was not to punish individual perpetrators but rather to inform the public and galvanise the anti-war movement.¹⁷ Inspired by the state-sanctioned Nuremberg trials, which had tried Nazi war criminals after World War II, Russell and Sartre believed that scrutinising the US’ actions through the lens of international law could help to achieve this aim.¹⁸ In the ‘institutional vacuum left by self-interested states and a cowed UN’,¹⁹ the philosophers took it upon themselves to do just this by gathering evidence, calling witnesses and making determinations. According to Krever, one of the Russell Tribunal’s greatest achievements was placing the question of the Vietnam War’s legality in the public eye,²⁰ notwithstanding its lack of institutional authority.

In the years that followed, activists continued to create what became known as ‘people’s tribunals’ as a way to critique existing legal and political arrangements and prefigure alternative possibilities. Between 1974 and 1976, for example, the Italian socialist lawyer Lelio Basso convened a Second Russell Tribunal focused on political repression and US imperialism in Latin America.²¹ As the 1960s turned into the 1970s, the gay and women’s liberation movements also came into being, building on the counterculture’s embrace of sexual freedom and questioning of traditional gender roles to put forward a more forceful critique of sexual and gendered power relations.²²

In 1976, these political developments came together in the form of two people’s tribunals focused on gender and sexuality. First, in March 1976, a group of women from Europe, the US and Mexico organised the International Tribunal on Crimes Against Women in Brussels (‘Brussels Tribunal’). Conceived at an international feminist camp in Denmark in 1974, the Brussels Tribunal was billed as a feminist response to the UN World Conference of the International Women’s Year in 1975 in Mexico City, which many saw as an attempt to give ‘women equality with men in the system as it exists’.²³ As philosopher Simone de Beauvoir stated in her opening address, sent by letter to the Tribunal: ‘In contrast to Mexico … [which was] seeking to integrate Woman into a male society, you are gathered here to denounce the oppression to which women are subjected in this society’.²⁴ The Tribunal took place over five days and addressed ‘gendered crimes’, including forced motherhood, compulsory heterosexuality, economic crimes, and the double oppression of Third World women. Participants testified on those issues that most affected them. Due to this article’s focus on non-normative sexuality, I will concentrate on the Brussels Tribunal’s engagement with the crime of ‘compulsory heterosexuality’.

The Brussels Tribunal was attended by over 2,000 women from 40 countries.²⁵ While most attendees were from the global North, women from Egypt, Guinea, India, Iran, Mexico, Mozambique, the Philippines, Syria, Vietnam and Yemen also participated.²⁶ In addition, there was a small group of immigrant and ‘Third World’ women living in Europe and settler colonies who testified, including an Aboriginal woman from Australia, a Black South African woman, a Native American woman, a Vietnamese woman living in France and an Indian woman living in Britain.²⁷ The organisers made active efforts to include the voices of these marginalised women. For example, the US committee borrowed funds to pay for the travel of Black and Native American attendees.²⁸ However, the geographic location of the Tribunal and racial composition of the organising committee likely meant that the testimony and proposals it produced were still largely shaped by white middle class values.

Around nine months later, in November 1976, the Australian gay liberation organisation, CAMP New South Wales (NSW), organised the Tribunal on Homosexuals and Discrimination at the University of NSW (UNSW) in Sydney (‘Sydney Tribunal’)²⁹ (Figure 1). Though inspired by the Russell Tribunal, the Sydney Tribunal was domestic in focus, aiming to document the ‘discrimination, persecution and repression’ of gay and lesbian people in Australia,³⁰ which at the time criminalised homosexual acts in most states and territories. It was held over two days and consisted of four ‘Tribunalists’, two assisting lawyers, over 40 witnesses, 165 attendees, and most major Australian media.³¹ There is less demographic information about the participants at the Sydney Tribunal than there is the Brussels Tribunal. While it is important not to erase the involvement of Aboriginal people in the Australian gay liberation movement – some of whom actively participated in the now-famous Mardi Gras protests of 1978 in Sydney³² – the university setting of the Sydney Tribunal likely meant that it too was dominated by the views and values of a white middle class. These racial and class dynamics must be kept in mind when looking to these tribunals for alternative legal imaginaries.

Figure 1. The Sydney Tribunal Poster.¹²⁹

3. Queer Reading

The Brussels and Sydney tribunals are sometimes viewed as a prelude to subsequent developments in international law. For example, in the foreword to a 1994 Review of the Sydney Tribunal, which re-published the original proceedings and reflected on legal changes that had occurred over the following two decades, then-President of the NSW Court of Appeal Michael Kirby wrote:

As 1994 provided the opportunity to review the 1976 Tribunal, it also presented the decision of a new Tribunal – this time one of global authority: the United Nations Human Rights Committee. That Committee unanimously upheld the complaint of Mr Nick Toonen that the Tasmanian Criminal Code provisions on homosexual conduct breached his human right to privacy as a homosexual man … This decision … shows how far we have come.³³

In this quotation, we see Kirby not only draw a line of continuity between the ‘unofficial’ Sydney Tribunal of 1976 and the ‘authoritative’ decision of Toonen v. Australia (1994),³⁴ but also portray that line as one of progress, remarking at how ‘far’ we had come.

In this article, by contrast, I read the Brussels and Sydney Tribunals through the lens of queer theory. ‘Queer theory’ refers to a body of critical theory that grew out of work of feminist thinkers such as Judith Butler and Eve Kosofsky Sedgwick in the early 1990s³⁵ and builds on the post-structuralist thought of Michel Foucault.³⁶ Although queer theory describes a diverse body of work, a number of key features can be distilled, including a rejection of essentialist and binary thinking, a mission to resist and destabilise regimes of sexual and gender normativity, and a radical embrace of difference. My queer reading of the two tribunals differs from the example taken from Kirby’s foreword in two key ways. First, following Gibson-Graham’s queer practice of reading for ‘difference rather than dominance’,³⁷ I focus not on the similarities between the tribunals and subsequent legal developments but rather on how their legal framings and procedures diverged from the LGBTI human rights framework that would later come, thereby shining a light on alternative legal possibilities.

Second, rather than smoothing the Brussels and Sydney Tribunals into a single narrative of progress, my reading of the tribunals creates space for queer temporalities, which are ‘visions of time that are plural, entangled, and non-linear’.³⁸ It does so by looking for resonances between the two 1976 initiatives and queer theory, which did not itself come about until the early 1990s. By drawing links between queer theory and the ideas underpinning the gay and women’s liberation movements, despite the gap in time between the two and the emergence of the gay rights movement in between, this reading disrupts the linear progress narrative that helps to naturalise the current LGBTI rights framework. My reading of the two tribunals also takes a queer approach to time by seeking inspiration from past futures, thereby heeding the call from scholars such as Freeman and Langlois for queer theorists to sometimes ‘trail behind actually existing social possibilities: to be interested in the tail end of things, willing to be bathed in the fading light of … our incomplete, partial, or otherwise failed transformations of the social field.’³⁹

4. The Tribunals’ Legal Framings

4.1 The Brussels Tribunal: Compulsory Heterosexuality

Of the two People’s Tribunals under analysis, the legal framing adopted by the Brussels Tribunal differed most from later international legal developments relating to non-normative sexuality. Rather than adopting a human rights frame, the Brussels Tribunal treated ‘compulsory heterosexuality’ as a crime.⁴⁰ This crime was not, however, centred around individual ‘victims’ and ‘perpetrators’. Instead, the Brussels Tribunal cast ‘compulsory heterosexuality’ as a social phenomenon that was contributing not only to the oppression of lesbians, but women more generally.⁴¹ What is more, for many participants in the Brussels Tribunal, compulsory heterosexuality had structural causes. More specifically, most participants saw it as rooted in the ‘capitalist and a patriarchal system’⁴² because it was both maintained by the lack of availability of paid employment for women and key to maintaining an ongoing system of unpaid social reproductive labour.⁴³ However, a witness from Mozambique also reminded Tribunal participants that compulsory heterosexuality was a feature of ‘Marxist-revolutionary countries all over the world’⁴⁴ and cautioned against uncritically seeking out feminist futures in such liberation movements as they existed on the ground.

The Tribunal’s structural framing of compulsory heterosexuality meant that, for many participants, overcoming the persecution of non-heterosexual people was not simply a matter of attaining equal civil and political rights or punishing ‘homophobic’ individuals. It involved actively spreading the word that ‘the compulsory heterosexual relationship is not natural’⁴⁵ and engaging in collective feminist action, such as the ‘wages for housework’ movement.⁴⁶

The notion of ‘compulsory heterosexuality’, which now features prominently in the work of some queer theorists,⁴⁷ offers a less prescriptive alternative to LGBTI human rights. In particular, it rendered the Brussels Tribunal more open to a diversity of sexual experiences. This can be seen through a comparison of the sexual constructions put forward in the Brussels Tribunal and those in the European Court of Human Rights (ECtHR), which was the first court to find that the ill-treatment of non-heterosexual people violated international law. In the ECtHR’s early sexuality-related case law, non-heterosexual applicants regularly framed their sexual orientation as an immutable characteristic they became aware of in childhood. In Dudgeon v. the United Kingdom (1981), for example, which challenged the criminalisation of homosexual acts in Northern Ireland, the applicant described himself as having been ‘consciously homosexual from the age of 14 years’.⁴⁸ Likewise, in Sutherland v the United Kingdom (1997), which challenged the UK’s higher age of consent for homosexual sex between men, the applicant stated he ‘became aware of attraction to other boys at about the age of 12. As his contemporaries became more interested in girls … he felt sure that his sexual orientation was homosexual.’⁴⁹

Johnson attributes the reliance on essentialist narratives before the ECtHR to the legal framework in which the applicants were operating.⁵⁰ In Dudgeon, the applicant sought to establish that the criminalisation of homosexual acts violated his right to private life under Article 8 of the European Convention on Human Rights⁵¹ (ECHR) even though he had not personally been charged with any offence. To do so, he argued that the very existence of the law interfered with his status as a ‘homosexual person’.⁵² The ECtHR was receptive to this claim, holding that the law interfered with an ‘essentially private manifestation’⁵³ of the applicant’s personality because it ‘prohibited sexual acts to which he is disposed by reason of his homosexual tendencies’.⁵⁴ However, in Dudgeon, the ECtHR also made it clear that there may be circumstances where the criminal regulation of homosexuality was justified, particularly when the aim is ‘to provide sufficient safeguards against exploitation and corruption of others’.⁵⁵ This meant that when it came to challenging the UK’s higher age of consent for homosexual sex in Sutherland, the applicant again deployed an essentialist narrative—this time to establish that teenage and young adult men were not vulnerable to homosexual ‘corruption’ because their sexual orientation was already ‘fixed’.⁵⁶ In Johnson’s view, foundational cases like Dudgeon and Sutherland then had a performative effect on subsequent applicants, who, whether it was legally necessary or not, oriented their speech to fit this discursive landscape.⁵⁷

Since these early cases, there has been some movement away from a fixed account of sexuality in human rights law, particularly in non-European jurisdictions. For example, in its 2017 Advisory Opinion on Gender Identity, and Equality and Non-Discrimination of Same-Sex Couples, the Inter-American Court of Human Rights (IACtHR) described sexual orientation as ‘a broad concept which creates space for self-identification’ and exists ‘along a continuum’.⁵⁸ However, the IACtHR also fell back into an essentialist register two sentences later by stating that sexual orientation is ‘inherent to the identity of the individual’.⁵⁹ Further, the essentialist ontology introduced by cases such as Dudgeon and Sutherland still looms large in the case law of the ECtHR. In Bayev and Others v. Russia (2017), for example, the ECtHR stated that Russia would need to produce ‘science-based evidence that one’s sexual orientation or identity is susceptible to change under external influence’⁶⁰ if it were to establish the reasonableness of its ban on ‘homosexual propaganda’.

In contrast, the Brussels Tribunal’s notion of compulsory heterosexuality did not hinge on a particular construction of ‘sexual orientation’. Rather, the focus was on denaturalising heterosexuality. This opened the door to an array of sexual narratives. Some participants deployed an essentialist ontology. A witness from Norway told the Tribunal that she ‘started to feel attracted to women at the age of 3’⁶¹ and defined a ‘lesbian’ as ‘a women who feels attracted to other women … whether we act on it or not’.⁶² Others, however, conceived of non-heterosexuality in more relational or cultural terms. A witness from France stated, ‘lesbianism means for me feminine polarity: cultural, psychic, emotional, sexual and creative polarity.’⁶³ For that witness, the future lay in nurturing this lesbian counterculture: ‘We must now discover the path of our own creativity, find a way to build our own culture, to waken from our silence. We have no models, no norms; we must create everything for ourselves.’⁶⁴

Moreover, the most common articulation of non-heterosexuality amongst participants in the Brussels Tribunal was as a form of rebellion. A witness from Germany told the Tribunal:

By their way of life, lesbians represent a threat to the very foundations of the patriarchal society, marriage and family … every woman who realizes that she does not need and does not want a man for her sexual satisfaction is attacking the sexual monopoly of men and therefore their domination.⁶⁵

Likewise, a witness from England stated: ‘So we are attacked not as passive victims, but because we ourselves are making an attack—we are refusing to be a service station for men … We lesbians have paid a heavy price for our rebellion.’⁶⁶

There are aspects of these accounts with which queer theorists today would take issue. For example, the exclusive focus on ‘lesbians’ and ‘women’, even when framed in radical or rebellious terms, renders bisexual, intersex, trans* and non-binary people invisible. The Tribunal participants also did not consider the way in which gender interacts with ‘compulsory heterosexuality’, meaning they overlooked what Butler calls the ‘heterosexual matrix’—that is, the way the:

institution of compulsory and naturalized heterosexuality requires and regulates gender as a binary relation in which the masculine term is differentiated from the feminine term, and this differentiation is accomplished through the practices of heterosexual desire.⁶⁷

Nevertheless, the Brussels Tribunal’s emphasis on ‘compulsory heterosexuality’ still came closer to the queer aim of allowing sexuality to thrive as an ‘open mesh of possibilities’⁶⁸ than the LGBTI rights framework ever has.

4.2 The Sydney Tribunal: The Right to be Public

The Sydney Tribunal adopted more of a human rights frame than the Brussel’s Tribunal. Not only was it centred around the idea of ‘discrimination’, but one of the Tribunal’s recommendations was the enactment of a Human Rights Bill in Australia.⁶⁹ As in the ECtHR, this frame seemed to prompt participants to rely on an essentialist narrative to establish that anti-homosexuality laws and practices interfered with their humanness. For example, in giving evidence about how the criminalisation of ‘buggery’ in NSW affected him, one of the witnesses told the Tribunal, ‘I think the whole Crimes Act here, as far as I am concerned discriminates against me. I have no sexual function as a person according to this act.’⁷⁰

The Tribunalists were receptive to this essentialist ontology. After hearing the testimony of the participants, the Tribunalists located discriminatory attitudes towards queer people in Australia in a widespread view that homosexuality ‘can be learned and passed on’ and that ‘your child is a target for homosexuals’⁷¹ — perceptions the Tribunalists noted were ‘held despite the fact that no evidence on whether homosexuality is acquired or not is taken into account’.⁷² But unlike the ECtHR, they did not treat it as necessary to their findings, noting that the whole ‘argument becomes irrelevant when homosexuality comes to be seen as one of a whole range of accepted life-styles and thus ceases to be a threat to society’.⁷³ In dismissing the essentialist-constructivist debate as ‘irrelevant’ if society were to simply be more open to diversity, the Sydney Tribunal created space for more fluid experiences of sexuality as well.

Furthermore, and perhaps because it was operating outside a pre-determined human rights framework, the Sydney Tribunal was not based around the right to privacy. As noted above, there has been a heavy reliance on the right to privacy in sexuality-related LGBTI human rights cases.⁷⁴ When the ECtHR became the first international court to hold the criminalisation of homosexuality violated human rights in Dudgeon, it did so on the basis that such a law violated the applicant’s right to private life under Article 8 of the ECHR.⁷⁵ Likewise, in Toonen v. Australia, the UN Human Rights Committee (HR Committee) held that Tasmania’s anti-sodomy law breached the right to privacy in Article 17 of the International Covenant on Civil and Political Rights,⁷⁶ taken together with the right to non-discrimination on the basis of sexual orientation under Article 2(1).⁷⁷ While both the ECtHR and HR Committee have since found breaches of other rights in the context of non-normative sexuality—including more ‘public’ rights, such as freedom of expression⁷⁸ and freedom of assembly⁷⁹—the right to privacy still dominates their LGBTI-related case law.

Queer theorists and activists have critiqued this emphasis on the right to privacy for failing to acknowledge sex as ‘an ultimately political and public issue’.⁸⁰ ACT-UP’s 1990 ‘Queer Manifesto’ reads: ‘Being queer is not about a right to privacy; it is about the freedom to be public, to just be who we are.’⁸¹ Moreover, in the view of some queer thinkers, the privacy-based approach in cases concerning non-normative sexuality reinforces the heteronormative division of space into ‘public’ and ‘private’ spheres. Warner describes this division as follows:

[N]ot all sexualities are public or private in the same way. Same-sex persons kissing, embracing, or holding hands in public view commonly excite disgust even to the point of violence, whereas mixed-sex persons doing the same things are invisibly ordinary, even applauded.⁸²

Seemingly coming from a similar viewpoint, the Sydney Tribunal spent little time engaging with privacy rights. In fact, based on the testimony before them, the Tribunalists found there was ‘a general tendency to ignore homosexuality as long as it is “invisible”, secret, or kept quiet.’⁸³ In every case brought to their notice, ‘it was public knowledge that invoked retribution to homosexuals.’⁸⁴ As such, in their recommendations, Tribunalists proposed action ‘to prevent the censorship of publicity about legitimate activities of homosexuals’, as well as greater community and professional education about ‘the many and varied forms of human and sexual relations’.⁸⁵ In making these recommendations, the Tribunalists not only recognised the importance of disrupting the heteronormative public/private divide, but also avoided placing the burden of publicness on the individual. That is, unlike Western ‘closet’ narratives, which tend to put the onus of disclosure on the queer subject,⁸⁶ the Sydney Tribunal’s anti-censorship and education-based approach designated the problem as a social and cultural one.

Again, there are aspects of the Tribunalists’ recommendations that sit uneasily with queer theory. A queer reader today might question what sexual practices would remain excluded from the public realm through the phrasing, ‘legitimate activities of homosexuals’. They may also criticise the Tribunalists’ failure to call for greater education about gender diversity as well. Nevertheless, the Tribunalists’ attempt to breakdown public/private barriers and frame the problem in social and cultural terms still offers a queerer approach to human rights than subsequent legal developments.

5. The Tribunals’ Structure and Procedure

5.1 The Brussels Tribunal: A Structureless Conference

The two people’s tribunals under examination occurred outside of the heteronormative and patriarchal structure of the state and international organisations. For the Brussels Tribunal, this was important because it allowed the participants to explore gendered and sexuality-related ‘crimes’ without reinforcing ‘man-made’⁸⁷ institutions. The deinstitutionalised nature of the Brussels Tribunal also opened the door to a range of alternative procedures to those employed by international courts and tribunals. From the outset, the Brussels Tribunal determined there would be no jury or panel of judges: ‘We were all our own judges’.⁸⁸ Nor would there be any expert witnesses, with the organisers preferring the analyses to be ‘informed by feelings, not just intellect’.⁸⁹

Moreover, while the Tribunal had workshops that put forward proposals for action, the main emphasis was on personal testimony.⁹⁰ Each day, women from around the world spoke about their views and experiences in relation to a given ‘gendered crime’. (Figure 2). The aim of this testimony was not to achieve a specific legal outcome or produce concrete ‘findings’, but rather to create a space for women to be heard and engender a sense of solidarity.⁹¹ In seeking to give ‘voice to dissenting perspectives and to subjects whose experience ha[d] been silenced by law and mainstream politics’,⁹² the Brussels Tribunal reflected what Otto calls a ‘politics of listening’.⁹³ While Otto relates the ‘politics of listening’ to a feminist approach to justice, it can also be seen as a queer one. As Smith and Lee write, ‘[q]ueer theory might … be seen as an approach … that tries to open up political space for different voices … [It] means listening to the voices of others.’⁹⁴

Figure 2. The Brussels Tribunal participants in the Palais de Congrès.¹³⁰

The Brussels Tribunal also balanced the ‘stories of oppression, maltreatment, and misery’⁹⁵ with moments of fun. On the Saturday and Sunday nights, parties were held at a women’s centre in Brussels called the Maison des Femmes, where ‘[h]undreds of women, gay and straight, danced exuberantly’ to the music of the Flying Lesbians — a popular feminist seven-piece rock band from Germany.⁹⁶ In the view of the organisers, the singing and dancing at these events helped to improve communication and feelings of solidarity, particularly amongst those from different cultural and linguistic backgrounds.⁹⁷ When viewed through a queer lens, we might also say the parties injected a queer ‘concern with pleasure’⁹⁸ into what would have otherwise been somewhat sombre proceedings, thereby prefiguring a more open and joyful world.

But perhaps the most striking feature of the Brussels Tribunal was that it did not go to plan. By the end of the first day, some participants grew irritated with the coordinating committee remaining on the platform, oral testimony being hurried along, and the lack of theoretical analysis, viewing these aspects of the Tribunal as hierarchical, authoritarian and inflexible.⁹⁹ By the second day, there were conflicts over issues such as whether to permit men journalists at the Tribunal,¹⁰⁰ and different groups began proposing alternative programs.¹⁰¹ On the third day, there was an unscheduled ‘lesbian demonstration’, in which around ‘150 women with signs pinned on their backs and fronts announcing “I am a Lesbian,” “J’aime les Femmes,” “Ich bin Lesbisch,” swarmed onto the stage’,¹⁰² sang a song and offered impromptu testimony, including one in the form of a poem.¹⁰³ From that point onwards, the coordinating committee did not occupy the platform again, permitting ‘a basically anarchistic situation to prevail’.¹⁰⁴

The structurelessness and conflict of the Brussels Tribunal contrasts with the approach of ‘official’ international human rights bodies, which are not only governed by established rules of procedure, but are also oriented towards consensus.¹⁰⁵ The HR Committee, for example, attempts to reach its decisions by consensus before voting.¹⁰⁶ While the ECtHR does not itself discourage dissenting judgments, it does seek to align its interpretations of the ECHR with (what it considers to be) prevailing social and legal norms via the principle of ‘European consensus’.¹⁰⁷ The Brussels Tribunal was criticised in the press for not following such a consensual approach. The Guardian ran an article on the Tribunal lamenting, ‘now, it seems … that any international meeting of women is more likely to produce division than cohesion.’¹⁰⁸ Yet, as I have argued elsewhere, the idea of consensus sits uneasily with queer theory’s embrace of alterity. This is because, ‘[a]t its core, the notion of “consensus” seeks to oust, or at least tame, difference. It pursues points of sameness and agreement, while simultaneously pushing aside and suppressing expressions of otherness and dissent.’¹⁰⁹ Further, as Halberstam argues, disrupting hegemonic power can sometimes require turning away from ‘the comfort zone of polite exchange’ and embracing queer political emotions, from joy to rage, despair and unrestrained disagreement.¹¹⁰

One of the organisers of the Brussels Tribunal, Diana Russell, later reflected that all the debates and program changes were what gave the Tribunal its energy: ‘the passive audience of the first day changed into active, involved participants. The Tribunal had come alive.’¹¹¹ What is more, the chaos did not cause the Tribunal to fall apart. Most of the women who had come with prepared testimony were still able to speak.¹¹² And while the disarray of event caused upset amongst some, many participants described it ‘as one of the most fantastic and meaningful experiences of their lives’.¹¹³ This led Russell to conclude that while she had never been to ‘a conference where the organizers were so willing to accept a basically anarchic situation’, she had also never ‘experienced anarchy working so well.’¹¹⁴

5.2 The Sydney Tribunal: Performing the State

The Sydney Tribunal proceedings were different to the Brussels Tribunal. Seeking to emulate a court or a commission of inquiry, it had a panel of Tribunalists to hear evidence on instances of discrimination from gay and lesbian people and hand down a judgement with recommendations.¹¹⁵ The Tribunalists each held prominent positions in Australian public life. There was Dr Jim Cairns, a sitting Member of the Australian Parliament and former Deputy Prime Minister of Australia, Arthur Gietzelt, an Australian Labor Party Senator and Shadow Minister for Agriculture, Bridget Grilling, Vice-President of the NSW Council for Social Services, and Barry Egan, the Secretary of the Australian Workers Union.¹¹⁶ According to the organisers, these ‘eminent’ people were intended to ‘make the Tribunal authoritative and influential.’¹¹⁷ The Tribunalists sat along a bench before an audience in the Clancy Auditorium at UNSW. (Figures 3 and 4)

Figure 3. The Tribunalists’ bench in the Clancy Auditorium at the Sydney Tribunal.¹³¹

Figure 4. The Tribunalists at the Sydney Tribunal.¹³² From left to right: Arthur Gietzelt, Dr Jim Cairns, Bridget Grilling and Barry Egan

The Sydney Tribunal also organised to have two lawyers, Jane Matthews and Helen Coonan, act as counsel.¹¹⁸ The role of these lawyers was to assist ‘the presentation of the evidence and tak[e] opposite sides in questioning those who testified’.¹¹⁹ The lawyers sat next to the witnesses during the presentation of evidence, as depicted in Figure 5 below.

Figure 5. Witness Peter Bonsall-Boone and lawyer Helen Coonan at the Sydney Tribunal.¹³³

As a result of these decisions, the Tribunal proceedings read, somewhat abrasively, like a court transcript, with witnesses being questioned and ‘cross-examined’ by counsel. At first, I found little inspiring or radical about this performance. It seemed to reinforce a cold and hierarchical way of ‘doing law’. But as I thought about it more, the Sydney Tribunal’s replication of state-like structures and procedures began to appear subversive. As Otto writes, people’s tribunals can present ‘a particularly potent means to criticize state-sponsored legality’ by putting forth ‘the idea that justice may be constituted outside the state.’¹²⁰ In having well-known public figures and established lawyers replicate a court and make recommendations about improving the liveability of queer lives at a time when homosexuality was criminalised in many parts of Australia, the Sydney Tribunal showed that a different law and justice could be enacted without the state’s blessing.

The Sydney Tribunal also used its legal performance to criticise the Australian legal system directly. After hearing evidence of two recent custody proceedings, in which custody had been made conditional on the parents undertaking to hide their non-heterosexual relationships from their children, several Tribunalists remarked on the judges’ ‘own repression’.¹²¹ In making these ‘official’ judges the object of their ‘judicial’ analysis, the Tribunalists not only challenged the authority of those specific judges but also established ideas about who has the right to speak the law.

Further, the selection of the Tribunalists must be read within its historical context. In 1975, the year before the Sydney Tribunal, democratically elected Australian Prime Minister Gough Whitlam had been dismissed by the unelected Governor-General, ushering in a more conservative government.¹²² For many, then, 1976 was a time of great disillusionment with Australian democracy and the state more generally. In having the former Deputy Prime Minister under the Whitlam Government, Jim Cairns, and Shadow Minister for Agriculture, Arthur Gietzelt, serve as Tribunalists and replicate state-like functions, the Sydney Tribunal seemed to create a ‘shadow state’, a ghost of what could have been, fracturing the unitary authority of the post-dismissal, heteronormative Australian state. This can be seen as queer both in the way it ‘made strange’ that particular state’s claim to legitimacy and in its disruption of the ‘official’/‘unofficial’ binary upon which states generally rely.

6. Conclusion

In this article, I went in search of a queerer international law by exploring two people’s tribunals in 1976. I argued that, when read for how they differed from subsequent legal events, both tribunals reveal ways of ‘doing law’ that are more compatible with queer theory than the contemporary LGBTI human rights framework. In the case of the Brussels Tribunal, this came from the way the tribunal designated compulsory heterosexuality as the problem and allowed listening, pleasure, emotion, and disagreement to enter the proceedings. In the case of the Sydney Tribunal, it was the result of the Tribunalists’ willingness to dismiss debates about the nature of sexual orientation, challenge the heteronormative public/private divide, and critique the repression of ‘official’ judicial officers. Excavating this forgotten history helps to denaturalise the LGBTI human rights framework by showing that it was not inevitable, but rather one of many competing legal imaginaries in the second half of the twentieth century. Bringing the tribunals’ alternative legal framings, structures and procedures to light could also serve as a source of inspiration for scholars and activists seeking to push international law in queerer directions in the present.

Further, my exploration of the Brussels and Sydney Tribunals through the lens of queer theory opens up a conversation about using people’s tribunals as mode of queer activism. While people’s tribunals have been considered from the perspective of feminist theory¹²³ and Third World Approaches to International Law,¹²⁴ they have not been the subject of queer analysis. Yet, as we saw in relation to the Brussels Tribunal, the deinstitutionalised nature of people’s tribunals offers a particularly potent form of prefigurative politics by allowing activists to perform the laws and procedures they wish to see in the world, while simultaneously challenging the idea that ‘social reformers must work within prevailing dispensations of power and privilege’.¹²⁵ In this regard, people’s tribunals could be used by queer activists to experiment with legal strategies and disseminate alternative legal discourses without ‘reaffirming the regulatory power of the nation-state’ or ‘legitimising the heteronormative imperial heritage of the normative framework of international law’, as Otto warns against.¹²⁶

The Sydney Tribunal also demonstrated that people’s tribunals can be used to fracture and subvert the authority of heteronormative institutions like the state by blurring the lines of what is ‘official’ and what is not. As Davina Cooper writes, when applied to institutions, ‘[p]refiguration undercuts the notion of institutional life as a clear, zero-sum, singular plane (or world)’;¹²⁷ it produces counter-institutions and policies that are both real and imaginary, that both are and are not,¹²⁸ and this can make them powerful tools of resistance and dissent. As such, in addition to the Brussels and Sydney Tribunals providing a repository of alternative legal possibilities from which queer thinkers today could draw, they may also encourage the use of people’s tribunals as a mode of queer activism into the future.

Acknowledgments

“I am grateful to the two anonymous reviewers and the editors of this special issue, Bérénice Kafui Schramm, Lena Holzer, Juliana Santos De Carvalho and Manon Beury, for their insightful and detailed suggestions. My thanks also to Dianne Otto, Tim Lindgren, Danish Sheikh, Odette Mazel, Siddarth Narrain, Jake Goldenfein, Caitlin Biddolph and Anna Hood for our discussions and feedback on this paper at its different stages. Earlier versions of this article were presented at the International Law Dis/Oriented Conference hosted by the Graduate Institute of Geneva in 2021, the Institute for International Law and the Humanities (IILAH)/ McKenzie Scholars' Workshop hosted by Melbourne Law School in 2022, and the Feminist, Queer, and Decolonial Approaches to Security, Law, and Human Rights workshop hosted by the University of Sydney in 2022. I thank the organisers and participants for their helpful questions and comments. I am also grateful to Peter de Waal AM, Dr Michèle Alexander and The New School Archives and Special Collections for their permission to use the images in this article.”

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Correction Statement

This article has been republished with minor changes. These changes do not impact the academic content of the article.

Additional information

Notes on contributors

Claerwen O’Hara

Claerwen O'Hara is a Lecturer at La Trobe Law School, Co-Chair of the Australian and New Zealand Society of International Law (ANZSIL) Gender, Sexuality and International Law Interest Group, and a Managing Editor of the Australian Feminist Law Journal. Their research spans the fields of international human rights law and international economic law, with a particular focus on queer and feminist approaches to international law, alternative internationalisms, and law and political economy

Notes

1 Ratna Kapur, ‘The (Im)Possibility of Queering International Human Rights Law’ in Dianne Otto (ed), Queering International Law: Possibilities, Alliances, Complicities, Risks (Routledge 2018) 132.

2 Ibid 138–141; Matthew Waites, ‘Critique of “Sexual Orientation” and “Gender Identity” in Human Rights Discourse: Global Queer Politics Beyond the Yogyakarta Principles’ (2009) 51 Contemporary Politics 137.

3 Rahul Rao, ‘Global Homocapitalism’ (2015) 194 Radical Philosophy 38.

4 Kapur (n 1) 133–7.

5 Ryan Richard Thoreson, ‘The Queer Paradox of LGBTI Human Rights’ (2011) 6 InterAlia: A Journal of Queer Studies 1, 27.

6 Teemu Ruskola, ‘Gay Rights versus Queer Theory: What Is Left of Sodomy after Lawrence v. Texas?’ (2005) 23 Social Text 236, 242.

7 Aeyal Gross, ‘Homoglobalism: The Emergence of Global Gay Governance’ in Dianne Otto (ed), Queering International Law: Possibilities, Alliances, Complicities, Risks (Routledge 2017).

8 Dianne Otto, ‘Resisting the Heteronormative Imaginary of the Nation-State: Rethinking Kinship and Border Protection’ in Dianne Otto (ed), Queering International Law: Possibilities, Alliances, Complicities, Risks (Routledge 2017) 242.

9 Dianne Otto, ‘Impunity in a Different Register: People’s Tribunals and Questions of Judgment, Law, and Responsibility’ in Karen Engle, Zinaida Miller and DM Davis (eds), Anti-Impunity and the Human Rights Agenda (Cambridge University Press 2016) 316.

10 In using people’s tribunals to seek out alternative international imaginaries, I am influenced by the doctoral work of Tim Lindgren, as summarised in Tim Lindgren, ‘Congealing the “Air” of International Investment Law: Jurisdiction, Race and Capital’, Heidelberg Journal of International Law (forthcoming, 2023).

11 App. No. 7525/76 (ECtHR, 22 October 1981).

12 Jeremi Suri, Power and Protest: Global Revolution and the Rise of Detente (Harvard University Press 2003) 88.

13 Robert Gildea and James Mark, ‘Introduction’ in Robert Gildea, James Mark and Anette Warring (eds), Europe’s 1968: Voices of Revolt (Oxford University Press 2013) 1.

14 Suri (n 12) 164.

15 Robert Gildea, James Mark and Niek Pas, ‘European Radicals and the “Third World”: Imagined Solidarities and Radical Networks, 1958–73’ (2016) 8 Cultural and Social History 449.

16 Marianne Maeckelbergh, ‘The Road to Democracy: The Political Legacy of “1968”’ (2011) 56 International Review of Social History 301, 304–308.

17 Otto (n 9) 292.

18 Tor Krever, ‘Remembering the Russell Tribunal’ (2017) 5 London Review of International Law 483.

19 Ibid 486–7.

20 Ibid 489.

21 Umberto Tulli, ‘Wielding the Human Rights Weapon against the American Empire: The Second Russell Tribunal and Human Rights in Transatlantic Relations’ (2021) 19 Journal of Transatlantic Studies 215.

22 On how the counterculture paved the way for the gay and women’s liberation movements, see Dennis Altman, Homosexual: Oppression and Liberation (Angus and Robertson 1972) 149.

23 Diana Russell and Nicole Van de Ven, Crimes against Women: Proceedings of the International Tribunal (Les Femmes 1976) 7.

24 Quoted in ibid 5.

25 Ibid 5.

26 Ibid 6.

27 Ibid 67, 76.

28 Ibid 161.

29 Peter de Waal, A Review of the 1976 Tribunal on Homosexuals and Discrimination (The Tribunal Working Group 1994) 2.

30 Ibid 3.

31 Ibid 5.

32 Angela Serrano, ‘Archer Asks: Allan Clarke and the First Nations History of Mardi Gras’ Archer Magazine (Online, 1 March 2018) <https://archermagazine.com.au/2018/03/archer-asks-allan-clarke-first-nations-history-mardi-gras/> accessed 5 Feb 2023.

129 de Waal (n 29) 1. I am grateful to Peter de Waal AM for permission to use this image.

33 Kirby in de Waal (n 29) v.

34 Communication No. 488/1992 (4 April 1994).

35 Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge 1990); Eve Kosofsky Sedgwick, Tendencies (Duke University Press 1993); Eve Kosofsky Sedgwick, Epistemology of the Closet (University of California Press 2008).

36 See, in particular, Michel Foucault, The History of Sexuality Vol 1: An Introduction (Robert Hurley tr, Pantheon 1980).

37 JK Gibson-Graham, A Postcapitalist Politics (University of Minnesota Press 2006) xxxi–xxxii.

38 Caitlin Biddolph, ‘Queering Temporalities of International Criminal Justice: Srebrenica Remembrance and the International Criminal Tribunal for the Former Yugoslavia (ICTY)’ (2020) 29 Griffith Law Review 401, 408.

39 Elizabeth Freeman, Time Binds: Queer Temporalities, Queer Histories (Duke University Press 2010) xiii. See also Anthony Langlois, ‘Queer Temporalities and Human Rights’ in Kathryn McNeilly and Ben Warwick (eds), The Times and Temporalities of International Human Rights Law (Hart Publishing 2022).

40 Russell and Van de Ven (n 23) 35–47.

41 Ibid 35.

42 Ibid 141.

43 Ibid 37.

44 Ibid 46.

45 Ibid 44.

46 Ibid 139–40.

47 Eg, Sara Ahmed, Queer Phenomenology: Orientations, Objects, Others (Duke University Press 2006).

48 Dudgeon (n 11) [32].

49 Sutherland v the United Kingdom, App. No. 25186/94 (ECnHR, 1 July 1997) [17] (emphasis added).

50 Paul Johnson, Homosexuality and the European Court of Human Rights (Routledge 2013) 49–52.

51 Opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953).

52 Johnson (n 51) 49.

53 Dudgeon (n 11) [60].

54 Ibid [41] (emphasis added).

55 Ibid [49].

56 Johnson (n 51) 52.

57 Ibid 49.

58 Advisory Opinion OC-24/17, 24 November 2017, [32].

59 Ibid.

60 Bayev and Others v. Russia, App Nos. 67667/09 et. al. (ECtHR, 20 June 2017) [78].

61 Russell and Van de Ven (n 23) 35.

62 Ibid.

63 Ibid 44.

64 Ibid.

65 Ibid 39.

66 Ibid 37.

67 Butler (n 36) 30.

68 Sedgwick, Tendencies (n 36) 9.

69 de Waal (n 29) 203.

70 Ibid 39.

71 Ibid 202.

72 Ibid.

73 Ibid.

74 Claerwen O’Hara, ‘Queering the International Human Rights Framework Pertaining to Sexuality: Toward the Right to Relate’ in Paula Gerber (ed), Worldwide Perspectives on Lesbians, Gays and Bisexuals, vol 2 (Praeger 2021).

75 Dudgeon (n 11) [63].

76 Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

77 Toonen (n 35) [9].

78 Eg, Fedotova v. Russia, Communication No. 1932/2010 (19 November 2012).

79 Eg, Alekseyev v. Russia, App Nos. 4916/07, 25924/08 and 14599/09 (ECtHR, 21 October 2010).

80 Ruskola (n 6) 242.

81 For the full text, see <http://www.actupny.org/documents/QueersReadThis.pdf> accessed 5 Feb 2023.

82 Michael Warner, Publics and Counterpublics (Zone Books 2005) 24.

83 de Waal (n 29) 201.

84 Ibid.

85 Ibid 203.

86 Sedgwick, Epistemology of the Closet (n 36) 67–90.

87 Russell and Van de Ven (n 23) 7.

88 Ibid.

89 Ibid 152.

90 Ibid 7.

91 Ibid.

92 Dianne Otto, ‘Beyond Legal Justice: Some Personal Reflections on People’s Tribunals, Listening and Responsibility’ (2017) 5 London Review of International Law 225, 226.

93 Ibid 228.

94 Nicola Smith and Donna Lee, ‘What’s Queer About Political Science?’ (2015) 17 The British Journal of Politics and International Relations 49, 59.

130 Roswitha Gans, ‘Audience at International Tribunal on Crimes against Women’ (1976) in the Michèle Alexander collection on the International Tribunal on Crimes against Women, New School Archives and Special Collections, the New School, New York City. I am grateful to Dr Michèle Alexander for permission to use this image.

95 Russell and Van de Ven (n 23) 181.

96 Ibid 12.

97 Ibid.

98 Dianne Otto, ‘Introduction: Embracing Queer Curiosity’ in Dianne Otto (ed), Queering International Law: Possibilities, Alliances, Complicities, Risks (Routledge 2018) 1.

99 Russell and Van de Ven (n 23) 169.

100 Ibid 164–8.

101 Ibid 171–2.

102 Ibid 11.

103 Ibid 44.

104 Ibid 172.

105 Kathryn McNeilly, Human Rights and Radical Social Transformation: Futurity, Alterity, Power (Routledge 2018) 77–8.

106 Thomas Buergenthal, ‘The U.N Human Rights Committee’ in Jochen A Frowein and Rüdiger Wolfrum (eds), Max Planck Yearbook of United Nations Law, vol 5 (Kluwer Law International 2001) 343.

107 For an overview of the European Court of Human Rights’ use of ‘European consensus’ as a technique of treaty interpretation, see Jens Theilen, European Consensus Between Strategy and Principle: The Uses of Vertically Comparative Legal Reasoning in Regional Human Rights Adjudication (Nomos 2021).

108 Quoted in Russell and Van de Ven (n 23) 182.

109 Claerwen O’Hara, ‘Consensus, Difference and Sexuality: Que(e)rying the European Court of Human Rights’ Concept of “European Consensus”’ (2021) 32 Law and Critique 91, 111.

110 Judith/Jack Halberstam, The Queer Art of Failure (Duke University Press 2011) 110.

111 Russell and Van de Ven (n 23) 178.

112 Ibid 173.

113 Ibid 190.

114 Ibid.

115 de Waal (n 29) 3.

116 Ibid 7.

117 Ibid 3.

131 de Waal (n 29) 5. I am grateful to Peter de Waal AM for permission to use this image.

132 Ibid 6. I am grateful to Peter de Waal AM for permission to use this image.

118 Ibid 4.

119 Ibid.

133 Ibid 11. I am grateful to Peter de Waal AM for permission to use this image.

120 Otto (n 9) 294–5.

121 de Waal (n 29) 135–6.

122 George Winterton, ‘1975: The Dismissal of the Whitlam Government’ in HP Lee and George Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press 2003).

123 Nevenka Tromp, ‘The Right to Tell: The Sarajevo Women Court in Search for a Feminist Approach to Justice’ in Regina Menachery Paulose (ed), People’s Tribunals, Human Rights and the Law: Searching for Justice (Routledge 2019); Otto (n 9); Otto (n 100).

124 Thamil Venthan Ananthavinayagan, ‘Panem et Circences?: People’s Tribunals from a TWAIL Perspective’ in Regina Menachery Paulose (ed), People’s Tribunal, Human Rights and the Law (Routledge 2019).

125 Hilary Charlesworth, ‘Prefiguring Feminist Judgment in International Law’ in Loveday Hodson and Troy Lavers (eds), Feminist Judgments in International Law (Hart Publishing 2019) 479.

126 Otto (n 100) 6–7.

127 Davina Cooper, ‘Towards an Adventurous Institutional Politics: The Prefigurative “as If” and the Reposing of What’s Real’ (2020) 68 The Sociological Review 893, 909.

128 Ibid.