LGBT rights versus Asian values: de/re-constructing the universality of human rights

Abstract

Law, especially from the international human rights regime, is a direct reference on which minority groups rely when it comes to ‘non-discrimination’. Drawing upon LGBT rights in Taiwan, as well as Hong Kong and Singapore, this article – through an application of K.H. Chen’s (2010) Asia as Method – critically reviews how global LGBT politics interact with local societies influenced by Confucianism. Along a perpetual competition between the universalism and cultural relativism of human rights, this article not only identifies the pitfalls of ‘Asian values’ from a cosmopolitan perspective but also contributes to a queered approach to human rights-holders against homonationalism.

Keywords:

• Asia as method
• Asian values
• cultural relativism
• human rights
• LGBT rights
• universality

Acknowledgements

The author would like to thank for inspiration from the members of the Sussex Asia Centre, University of Sussex, and the precious contribution to the realisation of the article from Professor Gerard Delanty, Professor Susan Millns, Dr Pin-Hsien Wu, and all the activists that I worked with in the past, as well as the anonymous reviewers.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributors

Po-Han Lee is a PhD candidate in law studies at the University of Sussex, UK. Besides engaging in the Asia Centre, Centre for Human Rights Research, and Rights and Justice Research Centre based at Sussex, he is also a contributor to Plain Law Movement and Queer Watch (in Chinese).

ORCiD

Po-Han Lee http://orcid.org/0000-0001-7547-1235

Notes

1. Roger Cotterrell, Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (Burlington: Ashgate Publishing Company, 2006), 1.

2. See Eugen Ehrlich, Fundamental Principles of the Sociology of Law, trans. Walter L. Moll. (New Brunswick and London: Transaction Publishers, 2002).

3. Thomas R. Powell, ‘Law as a Cultural Study’, The American Law School Review 4 (1917): 330–8.

4. Paul W. Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (Chicago: University of Chicago Press, 1999), 3–5.

5. Judith Butler, Bodies That Matter: On the Discursive Limits of ‘Sex’ (New York: Routledge, 1993), 2–12.

6. See Dianne Otto, ‘Lost in Translation: Re-Scripting the Sexed Subjects of international Human Rights Law’, in International Law and Its Others, ed. Anne Orford (Cambridge: Cambridge University Press, 2006), 318–356.

7. Nancy Levit, ‘A Different Kind of Sameness: Beyond Formal Equality and Antisubordination Strategies in Gay Legal Theory’, Ohio State Law Journal 61 (2000): 867–1793.

8. The elusiveness of the sexual subject and the danger of oversimplification have been proposed by researchers who have attempted to study the modern history of sexuality in Asia. See for example, Gerard Sullivan, ‘Variations on a Common Theme?’, Journal of Homosexuality 40, no. 3–4 (2001): 253–69; Paul Boyce, ‘The Ambivalent Sexual Subject: HIV Prevention and Male-to-Male intimacy in India’, in Understanding Global Sexualities: New Frontiers, ed. Peter Aggleton, Paul Boyce, ‎Henrietta L. Moore, and Richard Parker (Oxon: Taylor & Francis, 2012), 75–88; and Paul Boyce and Daniel Coyle, Development, Discourse and Law: Transgender and Samesex Sexualities in Nepal. IDS Evidence Report 13 (Brighton: Institute of Development Studies, 2013).

9. Max Travers, Understanding Law and Society (Abingdon: Routledge, 2010), 141–62; see also Tamara Loos, ‘Transnational Histories of Sexualities in Asia’, The American Historical Review 114, no. 5 (2009): 1309–24.

10. Kuan-Hsing Chen, Asia as Method: Toward Deimperialization (Durham and London: Duke University Press, 2010).

11. Josephine Chuen-Juei Ho, ‘Queer Existence under Global Governance: A Taiwan Exemplar’, Positions 18, no. 2 (2010): 537–54.

12. Eva Brems, Human Rights: Universality and Diversity (Dordrecht: Kluwer Law international, 2001).

13. Petrus Liu, ‘Queer Marxism in Taiwan’, Inter-Asia Cultural Studies 8, no. 4 (2007): 517–39.

14. See Wei Wei, ‘Tongxinglian Shehui Biaoxian Xingshi de Lishi Bianqian he Zhongxi Bijiao’ [The Historical Change and Sino-West Comparison of Homosexual Expression in Society], in Fei Xiaotong Xueshu Luntan Jiangtan Lu [Collection of Fei Xiaotong Academic Forum Lectures] (Shanghai: Shanghai University Press, 2010), 65–89.

15. Petrus Liu, ‘Why Does Queer Theory Need China?’, Positions 18, no. 2 (2010): 291–320.

16. Tom Boellstorff, ‘Some Notes on New Frontiers of Sexuality and Globalisation’, in Understanding Global Sexualities, ed. Aggleton et al., 171–85.

17. The notion of ‘West’ itself can be traditionally stereotypical and thus problematic, see for example, Leben’s discussion of a European approach to human rights. Here it is used intentionally to highlight all the non-Asian spheres of knowledge, especially those of colonialisation. See Charles Leben, ‘Is There a European Approach to Human Rights’, in The EU and Human Rights, ed. Philip Alston (Oxford and New York: Oxford University Press, 1999), 72.

18. In terms of geo-demographic status, all three are small and highly urbanised, and all are dominated by Han-Chinese. They were classified as three of the four Asian Tigers, which were notable for maintaining high growth rates and rapid industrialisation between the 1960s and the 1990s. They are all cosmopolitanised, open and influenced by Western capitalism.

19. All these societies claim to have a common Confucian heritage, but modern conservatism itself is an awkward blend of a prudish brand of Confucian teaching and evangelical means of Christian morality.

20. At the time when Singapore and Hong Kong became British colonies in 1824 and 1842, sodomy remained a crime punishable by death in England. That was also imported into Hong Kong’s Offences against the Person Ordinance of 1865, based on the 1861 English Offences against the Person Act, and Singapore's the Straits Settlement Law of 1871, which mirrored the Indian Penal Code.

21. Mark McLelland and Katsuhiko Suganuma, ‘Sexual Minorities and Human Rights in Japan: An Historical Perspective’, The International Journal of Human Rights 13, no. 2–3 (2009): 329–43.

22. See Doris T. Chang, Women's Movements in Twentieth-Century Taiwan (Champaign: University of Illinois Press, 2009).

23. Wang, Li-Jung. ‘Multiculturalism in Taiwan’, International Journal of Cultural Policy 10, no. 3 (2004): 301–18.

24. Jens Damm, ‘Discrimination and Backlash against Homosexual Groups’, in Politics of Difference in Taiwan, ed. Tak-Wing Ngo and Hong-zen Wang (Abingdon and New York: Routledge, 2011), 160.

25. Po-Han Lee, ‘How “Rainbow Factors” Are influencing Taiwan Local Elections’, Gay Star News, 3 December 2014, http://www.gaystarnews.com/article/how-%E2%80%98rainbow-factors%E2%80%99-are-influencing-taiwan-local-elections031214.

26. Beng Huat Chua, ‘Multiculturalism in Singapore: An instrument of Social Control’, Race & Class 44, no. 3 (2003): 58–77.

27. Shirley Zhao, ‘Most Hongkongers Believe Anti-Gay Attitudes Should Be Tolerated: Research’, South China Morning Post, 6 January 2015, http://www.scmp.com/news/hong-kong/article/1674815/anti-gay-attitudes-should-be-tolerated-hong-kong-society-new-research.

28. Steve Lee, ‘Marriage Equality in Taiwan Lacks Force of Law Despite Social Acceptance’, LGBT Weekly, 9 April 2014, http://lgbtweekly.com/2014/04/09/marriage-equality-in-taiwan-lacks-force-of-law-despite-social-acceptance/; Darren Wee, ‘68% of Taiwan Backs Gay Marriage: Poll Finds Women Are More Supportive Than Men’, Gay Star News, 7 November 2014, http://www.gaystarnews.com/article/68-taiwan-backs-gay-marriage071114.

29. Mathieu Deflem, ‘The Globalization of Law’, in Sociology of Law: Visions of a Scholarly Tradition, ed. Mathieu Deflem (Cambridge: Cambridge University Press, 2008), 250–70.

30. Victor Asal, Udi Sommer, and Paul G. Harwood, ‘Original Sin: A Cross-National Study of the Legality of Homosexual Acts’, Comparative Political Studies 46, no. 3 (2013): 320–351.

31. Homosexuality is more likely to be illegal, on the one hand, in common law or Islamic countries, and, on the other, in countries where there is a sizeable (and influential) Catholic population.

32. Homosexuality is more likely to be illegal in less democratic countries and/or countries with fewer women in the legislatures.

33. Homosexuality is more likely to be illegal in countries with lower GDP per capita.

34. Homosexuality is more likely to be illegal in countries that are less exposed to, or plugged into, the process of globalisation.

35. Singapore stands out as the only country among 76 that the International Monetary Fund classifies as advanced economies which still criminalises same-sex acts globally.

36. Mark McLelland and Vera Mackie. ‘Introduction: Framing Sexuality Studies in East Asia’, in Routledge Handbook of Sexuality Studies in East Asia, ed. M. McLelland and V. Mackie (Oxon and New York: Taylor & Francis, 2014), 1–4.

37. Donald Cochrane, ‘Policy Issues Concerning Sexual Orientation in China, Canada, and the United States’, in Social Issues and Policy Challenges in Western China: Lessons Learned and Lessons Borrowed Conference (University of Saskatchewan, Saskatoon, 29 August 2013), a keynote speech for the Social Issues and Policy Challenges in Western China: Lessons Learned and Lessons Borrowed Conference.

38. Travis S.K. Kong, Hoi Leung Lau, and Cheuk Yin Li, ‘The Fourth Wave? A Critical Reflection on the Tongzhi Movement in Hong Kong’, in Routledge Handbook of Sexuality Studies in East Asia, ed. McLelland and Mackie, 188–202.

39. Lisa Fischler, ‘Women’s Activism during Hong Kong's Political Transition’, in Gender and Change in Hong Kong: Globalization, Postcolonialism, and Chinese Patriarchy, ed. Eliza Wing-Yee Lee (Toronto: UBC Press, 2011), 49–77.

40. Anna Leach, ‘Why Is Taiwan the Best Place to Be Gay in Asia?’, Gay Star News, 12 November 2012, http://www.gaystarnews.com/article/why-taiwan-best-place-be-gay-asia121112.

41. See Stephen Kalberg, Max Weber's Comparative-Historical Sociology Today: Major Themes, Mode of Causal Analysis, and Applications (Surrey and Burlington: Ashgate, 2012), especially 2–8, for an overview.

42. Mikael R. Madsen and Yves Dezalay, ‘The Power of the Legal Field: Pierre Bourdieu and the Law’, in An Introduction to Law and Social Theory, ed. Reza Banakar and Max Travers (Oxford and Portland: Hart, 2002), 189–204.

43. Cotterrell, Law, Culture and Society, 1–5.

44. Ken Plummer, ‘Contingent Sexualities: Fifty Years of Sexual Stories’ (University of Sussex, Brighton, 8 May 2015), a keynote speech for the Researching Sex and Sexualities Conference and Workshops.

45. See Bret Hinsch, Passions of the Cut Sleeve: The Male Homosexual Tradition in China (Berkeley, Los Angeles, and London: University of California Press, 1990).

46. ‘The sodomite had been a temporary aberration; the homosexual was now a species’. See Michel Foucault, The History of Sexuality. Volume 1: An Introduction, trans. R. Hurley (New York: Random House, 1978), 43. The term ‘homosexuality’, as a modern product, was coined in 1869 by Karl-Maria Kertbeny as a Greco-Latin neologism that ‘became a widely adopted appellation for same-sex behaviour’. See Robert Aldrich, ‘Gay and Lesbian History’, in Gay Life and Culture: A World History, ed. Robert Aldrich (New York: Universe Publishing, 2006), 11. See also Wah-Shan Chou, ‘Homosexuality and the Cultural Politics of Tongzhi in Chinese Societies’, Journal of Homosexuality 40, no. 3–4 (2001): 27–46.

47. K.E. Kuah-Pearce, ‘Experimenting with Religious Values as Asian Values’, in State, Society, and Religious Engineering: Towards a Reformist Buddhism in Singapore (Singapore: ISEAS Publishing, 2009), 195–222.

48. Michel Foucault, Power/Knowledge: Selected interviews and Other Writings, 1972–1977, ed. Colin Gordon (New York: Pantheon Books, 1980), 81.

49. Previous Parliamentary Member Baey Yam Keng, for example, criticised the information regarding homosexuality on the website of the Singapore Health Promotion Board for neglecting the Asian values of family. See Siau Ming En, ‘“Disappointed” MP Criticises HPB [Health Promotion Board] for its FAQ on Sexuality’, Today, 7 February 2014, http://www.todayonline.com/singapore/disappointed-mp-criticises-hpb-its-faq-sexuality.

50. In Singapore, which is multiracial, direct references to ‘Chinese culture’ are thus intentionally prevented. This notion was first advocated by Mahathir Mohamad (Prime Minister of Malaysia during 1981–2003) and later by Lee Kuan Yew (leader of Singapore during 1990–2004).

51. See Seng-Chau Ou, ‘Yazhou Jiazhi de Quanshi yu Shijian: Xinjiapo zhi Gean Yanjiu’ [The interpretations and Practices of Asian Values: Singapore Case Study] (Master's thesis, National Sun Yat-sen University, 2002).

52. The first of five Shared Values of Singapore promulgated by then-Deputy Prime Minister Goh Chok Tong in 1990 reads ‘Nation before community and society above self.’

53. Hinsch, Passions of the Cut Sleeve.

54. See Cuncun Wu, Homoerotic Sensibilities in Late Imperial China (Abingdon and New York: RoutledgeCurzon, 2004), 45.

55. Ibid., 29.

56. Jens Damm, ‘Same Sex Desire and Society in Taiwan, 1970–1987’, The China Quarterly, no. 181 (2005): 67–81.

57. Wu, Homoerotic Sensibilities in Late Imperial China, 21.

58. In fact, Chinese history has shown a great representation of same-sex, transvestism, or cross-dressing in both the civic and official records.

59. Kenneth Chan, ‘Gay Sexuality in Singaporean Chinese Popular Culture: Where Have All the Boys Gone?’, China Information 22, no. 2 (2008): 305–29.

60. A comprehensive discussion upon such controversies can be found in Nicole J. Beger, Tensions in the Struggle for Sexual Minority Rights in Europe: Que(e)rying Political Practices (Manchester: Manchester University Press, 2004).

61. Eva Brems, ‘Enemies or Allies? Feminism and Cultural Relativism as Dissident Voices in Human Rights Discourse’, Human Rights Quarterly 19, no. 1 (1997): 136–64.

62. Scott L. Morgensen, ‘Settler Homonationalism: Theorizing Settler Colonialism within Queer Modernities’, GLQ: A Journal of Lesbian and Gay Studies 16, no. 1–2 (2010): 105–31.

63. Florian F. Hoffmann, ‘Human Rights, the Self and the Other: Reflections on a Pragmatic Theory of Human Rights’, in International Law and Its Others, ed. Anne Orford (Cambridge: Cambridge University Press, 2006).

64. See Universal Declaration of Human Rights (UDHR), article 1.

65. Otto, ‘Lost in Translation’, 319–20.

66. See Charter of the United Nations, article 1.

67. See UDHR, article 2.

68. Christopher McCrudden, ‘Human Dignity and Judicial interpretation of Human Rights’, European Journal of International Law 19, no. 4 (2008): 655–724.

69. Jack Donnelly, ‘Non-Discrimination and Sexual Orientation: Making a Place for Sexual Minorities in the Global Human Rights Regime’, in Innovation and Inspiration: Fifty Years of the Universal Declaration of Human Rights, ed. P.R. Baehr, C. Flinterman, and M. Senders (Amsterdam: Royal Netherlands Academy of Arts and Sciences, 1999), 93–110.

70. See, for example, HRC, Toonen v. Australia, Communication No. 488/1992 (1994); Mr. Edward Young v. Australia, Communication No. 941/2000 (2003); X v. Colombia, Communication No. 1361/2005 (2007).

71. See UDHR, article 2.

72. In her monologue, she attempted to describe a picture comprehensively portraying the becoming of those who are sexually marginalised. See Judith Butler, Undoing Gender (New York and Oxon: Routledge, 2004).

73. Donnelly, ‘Non-Discrimination and Sexual Orientation’, 105.

74. Ibid., 106.

75. Jack Donnelly, ‘The Relative Universality of Human Rights’, Human Rights Quarterly 29, no. 2 (2007): 281–306.

76. Ibid., 296.

77. Ilana F. Silber, ‘Pragmatic Sociology as Cultural Sociology: Beyond Repertoire Theory?’, European Journal of Social Theory 6, no. 4 (2003): 427–49.

78. Jasbir Puar, ‘Rethinking Homonationalism’, International Journal of Middle East Studies 45, no. Special Issue 2 (2013): 336–9.

79. Donnelly, ‘The Relative Universality of Human Rights’, 303.

80. Jürgen Habermas, ‘The Constitutionalization of International Law and the Legitimation Problems of a Constitution for World Society’, Constellations 15, no. 4 (2008): 444–55. See also Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation (Cambridge: Cambridge University Press, 2002), 7–14; 66–8.

81. Ken Plummer, Cosmopolitan Sexualities: Hope and the Humanist Imagination (Cambridge and Malden: Polity Press, 2015).

82. Ann-Belinda S. Preis, ‘Human Rights as Cultural Practice: An Anthropological Critique’, in Human Rights: An Anthropological Reader, ed. Mark Goodale (Malden, Oxford, and Chichester: Blackwell Publishing, 2009), 332–355.

83. Chen, Asia as Method, 4–8.

84. Elizabeth M. Zechenter, ‘In the Name of Culture: Cultural Relativism and the Abuse of the Individual’, Journal of Anthropological Research 53, no. 3 (1997): 319–47.

85. Brems, ‘Enemies or Allies?’, 136.

86. People also argue that it is a result of the paternalism that came out of the one-party authoritarian system, and this may properly capture the reasoning conceptualising ‘Asian values’, which accentuates pro-family completeness and anti-individualism. See Ju-Chun Chien, ‘Fu Ai Zengzhi xia de Tongzhi Quan Fazhan: Xinjiapo Gean Yanjiu’ [The Development of Gay Rights in the Paternalism: The Case of Singapore]. (Master's thesis, National Chi Nan University, 2005).

87. de Sousa Santos, Toward a New Legal Common Sense, 21–61; see also Foucault, Power/Knowledge, 81–92.

88. Gayatri C. Spivak, ‘Can the Subaltern Speak?’, in Marxism and the Interpretation of Culture, ed. Cary Nelson and Lawrence Grossberg (Urbana and Chicago: University of Illinois Press, 1988), 271–313.

89. See David Ingram, Habermas: Introduction and Analysis (Ithaca and London: Cornell University Press, 2010), 286.

90. Petrus Liu, Queer Marxism in Two Chinas (Durham, NC: Duke University Press, 2015), 138–69.

91. Yu-Shuan Huang, ‘Si Lingyu zhong de Rentong Zhanyan: Taiwan Tongzhi Yundong Ling Yimian’ [Performing an Identity in Private Sphere: The Other Side of Gay and Lesbian Movement in Taiwan]. (Master's thesis, Nanhua University, 2006).

92. This is mainly contributed to by the ‘Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR)’, ‘Lobby Alliance for LGBT Human Rights Declaration’, ‘Intersex, Transgender and Transsexual People Care Association (ISTScare)’, ‘Taiwan's Gender Queer Rights Advocacy Alliance’, and ‘the Appendectomy Project’. It concerns not only sexual and gender minorities but also persons with disabilities, migrants, labours, sex workers and aboriginals.

93. Ken Plummer, ‘Introducing Sexualities’, Sexualities 1 (1998): 5–10, at 5.

94. Daniel Bowman, ‘Towards a Human Rights State? A Comparison of Taiwan's Human Rights Policies under Chen Shui-Bian and Ma Ying-Jeou’ (Master's thesis, National Chengchi University, 2010).

95. C.R. Pramod, ‘Political Process Sequencing in the institutionalisation of Human Rights in Taiwan’, China Report 46, no. 2 (2010): 121–41.

96. See Pauline Oosterhoff, Tu-Anh Hoang, and Trang Thu Quach. Negotiating Public and Legal Spaces: The Emergence of an LGBT Movement in Vietnam. IDS Evidence Report 74 (Brighton: Institute of Development Studies, 2014); Catherine Earl, ‘Life as Lived and Life as Talked About: Family, Love and Marriage in Twenty-First Century Vietnam’, in Routledge Handbook of Sexuality Studies in East Asia, ed. McLelland and Mackie, 101–11.

97. See Yanapon Musiket, ‘Legalising Love’, Bangkok Post, 26 March 2013, http://www.gaystarnews.com/article/how-%E2%80%98rainbow-factors%E2%80%99-are-influencing-taiwan-local-elections031214.

98. See Hyaeweol Choi, ‘Constructions of Marriage and Sexuality in Modern Korea’, in Routledge Handbook of Sexuality Studies in East Asia, ed. McLelland and Mackie, 87–100; Steven Borowiec, ‘South Korea's LGBT Community Is Fighting for Equal Rights’, Time, 11 February 2014, http://www.gaystarnews.com/article/how-%E2%80%98rainbow-factors%E2%80%99-are-influencing-taiwan-local-elections031214.

99. See Editorial, ‘Tokyo's Shibuya Ward Adopts Ordinance to Recognize Same-Sex Unions’, The Japan Times, 31 March 2015, http://www.gaystarnews.com/article/how-%E2%80%98rainbow-factors%E2%80%99-are-influencing-taiwan-local-elections031214.

100. Elvis Anber, ‘Taipei: A Rising Star for Gay Travelers’, Taipei Times, 11 July 2010.

101. Lee, ‘How “Rainbow Factors” Are influencing Taiwan Local Elections’.

102. In reality, the conflict between the ‘Taiwan Family Association’ (the religious group) and the rainbow coalition becomes more and more furious, when the quintessential form of partnership and family as well as the sexual revolution among the young are challenged simultaneously by both sides.