Pushing the conversation forward: the intersections of sexuality and gender identity in transitional justice

It should be obvious that there are many different ways to be a human being … We need to respect and embrace these differences – not criminalize them, not attack people, not deprive them of equal rights or the protection of the law, just because they are seen as ‘different’ … There should be nothing ‘controversial’ about stopping people being murdered, or executed by agents of the State, simply because of who they are or whom they love … Tackling extreme violence does not require new norms.¹

Global attention around sexual and gender minority rights has risen significantly within the past decade,² in large part thanks to the tireless efforts of transnational lesbian, gay, bisexual, trans, and intersex persons (LGBTI) activists.³ Yet, while global discourse and research on sexual and gender minorities builds, there remains a reluctance and resistance to systematically incorporate sexuality and gender identity in development and human rights policy and practice. UN High Commissioner for Human Rights, Michelle Bachelet’s statement above speaks to this reluctance. Bachelet’s words came during the yearlong 70th celebration of The Universal Declaration of Human Rights. To date, there remains only one UN General Assembly resolution (UNHCR Resolution 32/2)⁴ that explicitly references sexual orientation and gender identity in addressing violence. While there is some conversation within the UN that protections around human rights encompass sexual and gender minorities, there is resistance to recognise violence and persecution of LGBTI by many UN member states.⁵ Despite this reluctance by the UN to incorporate more specific language regarding LGBTI existence and human rights protection, violence against LGBTI communities continues, with seventy UN Member States criminalising consensual same-sex acts and six imposing the death penalty.⁶ From the mass imprisoning of sexual and gender minorities in Chechnyna to the enforcement of severe punishments against consensual same-sex acts in places like Brunei and Uganda, sexual and gender minorities around the world live a precarious existence. Johnson and Longhurst write ‘[Q]ueer bodies have long been thought of as a threat to social stability and public order’.⁷ This is particularly evident in areas transitioning from a period of mass violence, such as genocide, conflict, state-repression, slavery and settler colonialism, when LGBTI populations become easy targets for state and public violence.⁸

As post-atrocity societies work to reestablish and rebuild social trust, those who fall outside societal norms become increasingly visible and marginalised, especially sexual and gender minorities.⁹ LGBTI existence threatens societal sexual and gendered norms. LGBTI presence is a threat to entrenched systems of state and societal power and control which depend on heterosexism and heteronormativity.¹⁰ Cultural or religious values, patriarchy and the gender hierarchy, and the maintenance of the family can easily be depicted by state and society as under attack by the inclusion of LGBTI rights. These heteronormative and heterosexist attitudes and practices force LGBTI individuals into the status of outsider or ‘Other’ in their local communities. At the same time, LGBTI communities are marginalised and invisible because their ability to politically organise is actively repressed. In some societies, instability generated by mass violence intensifies attacks against LGBTI. The rising rates of anti-LGBTI violence in Post-Agreement Northern Ireland and post-conflict Uganda are just some examples of how pervasive violence and anti-LGBTI sentiments grow in peace process societies.¹¹ In South Africa, despite a lengthy reconciliation processes and legal protections for sexual and gender minorities, violence and discrimination against sexual and gender minorities has not abated.¹² Therefore, it is important to consider how in times of supposed peace and reconciliation, sexual and gender minorities rights are not protected, increasing their vulnerability to violence.¹³

Despite the increased attention to addressing violence against sexual and gender minorities, the field and practice of transitional justice remains relatively silent on questions of sexuality and gendered constructs of power and violence, and how these intersect not just with gender identities, but also with other dimensions of identity and persecution, notably ethnicity and nationality.¹⁴ Transitional justice is now regarded as an increasingly broad and sophisticated field of study and practice that involves a range of processes and mechanisms rooted in states’ obligations to come to terms with legacies of past abuses in order to achieve reconciliation and ensure accountability. Its influence is seen in the increased use of truth commissions, state directed reparations, and lustration programmes aimed at preventing future abuse, identifying responsibility, and ultimately establishing a rule of law in post-conflict areas. In the state’s absence of assuming responsibility, or, to counter state-based approaches, civil society based initiatives have emerged locally and globally.¹⁵ Regardless of the mechanism, public recognition is largely absent of violence against LGBTI persons during periods of mass violence.¹⁶ Decolonial, queer and intersectional analytical lenses urgently need application to mechanisms of transitional justice to realise the full rights of each LGBTI persons.¹⁷

Over the past three decades, transitional justice evolved from limited definitions of violence to incorporating feminist critiques around the gendered nature of conflict.¹⁸ This allowed greater focus and urgency in addressing gender-based violence, ensuring that transitional justice measures meaningfully address the causes and consequences of abuses against women and other minority groups. Special Courts and the International Criminal Court (ICC) have radically re-shaped understandings of sexual and gender-based violence within international criminal law, and contributed to a greater awareness of the need to understand the gendered constructs of power and social norms that shape violence and impact on communities within conflict and post-conflict settings.¹⁹ The field of transitional justice has been slow, however, in addressing sexuality and sexualised constructs of power and violence. In the absence of a critical analysis of post-conflict and transitional justice’s actual and potential capacity to address these gendered and sexual harms, the lens through which sexual and gender-based violence is visualised will remain limited and exclude whole categories of victims.²⁰

This Special Issue on Sexuality, Gender Identity and Transitional Justice explores past and present violence against sexual and gender minorities in settings of mass and systemic violence. The four articles presented provide a multidisciplinary platform for critical discussion of the place of sexuality and gender within transitional justice and post-conflict discourse and processes. We start this Special Issue with Katie McQuaid’s article, ‘There is violence across, in all arenas’: Listening to stories of violence amongst sexual minority refugees in Uganda.’ McQuaid explores the experiences of sexual minorities in the Democratic Republic of Congo and Uganda and the particular ways in which gendered, sexualised, and racialized violence is enacted by the state on sexual and gender minorities. Violence against sexual and gender minorities must be addressed within transitional justice mechanisms in order to not reproduce gender and sexual hierarchies that allow anti-LGBTI violence to continue. Grounded in the experiences of Sifa, a Congolese lesbian woman, McQuaid reveals the limitations of current research on sexual and gender-based violence in transitional justice research. McQuaid argues for the inclusion of non-heteronormative sexualities within a gendered transformative approach to transitional justice. Including nonheteronormative sexualities and gender identities pushes the field of transitional justice to move beyond just state (or public) violence directed against the wider populations. State-directed violence against sexual and gender minorities takes place in routine everyday violence in the private sphere. It is therefore vital to address both spheres of violence (state and public) in order to address the underlying mechanisms that cause violence to occur and to fully address past and present violence against sexual and gender minorities. Victims of past armed conflict must also be regarded as having multiple identities that makes them vulnerable to violence. Incorporating sexuality and gender identity into cultural or ethnic identity is important and affords greater understanding of the intersections of past and present violence.

Rocky James’ article, ‘An evolution in queer Indigenous oral histories through the Canada Indian residential school settlement agreement,’ pushes the conversation on transitional justice forward with a queer Indigenous phenomenological approach as an Intergenerational Indian Residential School survivor and gay Coast Salish man. James explores how the Canadian Truth and Reconciliation Commission and the Independent Assessment Process approach to addressing sexual abuse and gender-based violence against Indian Residential Schools survivors reinforces heteronormative and cisnormative hierarchies by not fully addressing sexuality and gender expression, while at the same time conflating sexual abuse with same-sex sexuality. Sex, sexuality, and sexual expression were routinely covered in the Truth and Reconciliation Commission and the Independent Assessment Process testimonies, yet little critical discussion was given to separating sexual abuse, gender-based violence, and power from sexual expression, desire, and identity. By not giving adequate space for discussion around healthy and unhealthy sexual expression and not allowing for larger discussions of the effects of the Indian Residential Schools on sexual and gender minority survivors, colonial-settler heteronormativity and cisnormativity goes unchecked and allows these human rights violations to continue. James calls for a queer Indigenous critique to transitional justice that interrogates both heteronormativity and cisnormativity, as well as the hierarchies of gendered and sexualised violence against Indigenous peoples by white settler colonialism.

Sexual and gender minority rights are becoming more intertwined within global human rights and development programmes.²¹ Yet, while increased attention to sexual and gender minorities is a welcome progress, it does not mean that the relationship between global LGBTI initiatives and local actors is always successful or positive. Friction occurs between human rights policy or rhetoric and actual practice in which local actors must navigate between both. John Nagle’s article, ‘Frictional Encounters in Postwar Human Rights: An Analysis of LGBTI Movement Activism in Lebanon,’ interrogates the friction between the divided post-civil war Lebanon and LGBTI social movement activism. Nagle discusses multiple points of friction as a result of LGBTI activism in the context of Lebanon’s post-sectarian civil war where political and public institutions are secretarian and structured to accommodate identities of respective ethnic or ethnoreligious groups, many of whom have strong anti-LGBTI beliefs. Activists in Helem–the first recognised LGBTI rights group in the Middle East and North Africa–navigate between postwar secretarian institutions that are not accessible to them and global human rights policies that are available, but not necessarily applicable in the local context. These local LGBTI actors confront deeply entrenched structural and agential barriers that afford little opportunities for advancing LGBTI rights and policy change. It is through the informal and the local level that LGBTI rights actors in Lebanon must work. Nagle’s work highlights the multiple areas of friction in post-war Lebanon that not only serve to reproduce heteronormative and cisnormative hierarchies, but also work to marginalise LGBTI rights on the national level.

We finish this Special Issue with Nicole Maier’s article, ‘Queering Colombia’s peace process: A Case Study of LGBTI Inclusion,’ that interrogates multiple attempts to address LGBTI victims of the armed conflict and the limitations by civil society and Colombia’s peace negotiations to address violence against sexual and gender minorities. Despite efforts by local LGBTI organisations and the International Center for Transitional Justice to document the violence against LGBTI during the 50 years of armed conflict, the ongoing structural violence LGBTI experience in broader society made it challenging to distinguish and separate specific acts of violence from one another. Maier encourages those in transitional justice research and processes to question the larger context and societal attitudes where armed conflict and militarised violence occurs. In the case of LGBTI victims of armed conflict, it is difficult to separate targeted attacks from the government of Colombia and the Revolutionary Armed Forces of Colombia from the everyday violence caused by homophobia, transphobia, racism, and sexism. Addressing LGBTI victims of armed violence forces those working in transitional justice to address the interconnectedness of identities in which violence is ongoing despite peace processes. The normalisation of violence against LGBTI individuals also makes it challenging for officials to fully see the scope of the problem, both in a transitional justice framework and in ensuring the rights of LGBTI survivors in current society. As Colombia continues with its peace process, which entails having a Truth Commission, it is uncertain where LGBTI victims stand and if their experiences will be fully addressed. Maier’s article is a challenge to all of us working within the field of transitional justice to further broaden our conceptualizations of violence, as well as public memory, in order to provide a space for queer bodies who experience oppression on multiple fronts and temporalities.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes on contributors

Katherine Fobear ([email protected]) is an Associate Professor of Women’s Studies, Fresno State University. Her research and activism focus on the intersections of race, sexuality, and gender in migration and transitional justice. Her most recent work is with LGBTQ refugees and undocumented persons in Canada and transgender homeless in California’s Central Valley. She is the author of several journal articles regarding transitional justice and oral history, most notably in The Journal of Homosexuality (2012), Journal of Human Rights Practice (2013), Refuge (2014), & Women’s Studies International Forum (2017).

Erin Baines ([email protected]) is the Ivan Head South North Chair and Associate Professor in the School of Public Policy and Global Affairs (SPPGA). Her research areas include the politics of storytelling and memory, veterans, sexual violence in armed conflict and she is the author of Vulnerable Bodies: Gender, the UN and the Global Refugee Crisis (Ashgate, 2017) and Buried in the Heart: Women, Complex Victimhood and the War in Northern Uganda (Cambridge, 2017).

Notes

1 Michelle Bachelet, quoted in Laura Jarriel, ‘Violence against the LGBTI Community: UN Focuses on “Need to Challenge Hatred”’, UN News, September 25, 2018, https://news.un.org/en/story/2018/09/1020592 (accessed June 28, 2019).

2 Kelly Kollman and Matthew Waites, ‘The Global Politics of Lesbian, Gay, Bisexual and Transgender Human Rights: An introduction’, Contemporary politics 15, no. 1 (2009): 1–17.

3 Ryan R. Thoreson. Transnational LGBT Activism: Working for Sexual Rights Worldwide. (Wisconsin: University of Minnesota Press, 2014).

4 Human Rights Council resolution 32/2, Protection against violence and discrimination based on sexual orientation and gender identity, A/HRC/RES/32/2 June 30, 2016, https://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBTUNResolutions.aspx

5 Jamie J. Hagen, ‘Queering Women, Peace and Security’, International Affairs 92, no. 2 (2016): 313–32; Eduard Jordaan, ‘The Challenge of Adopting Sexual Orientation Resolutions at the UN Human Rights Council’, Journal of Human Rights Practice 8, no 2 (2016): 298–310.

6 Luis Ramon Medos, ‘State-sponsored Homophobia Report’, ILGA, (2019), https://ilga.org/downloads/ILGA_State_Sponsored_Homophobia_2019.pdf (accessed June 28, 2019).

7 Lynda Johnston and Robin Longhurst, Space, Place and Sex: Geographies of Sexualities (Lanham: Rowman and Littlefield, 2009), 115.

8 Katja Kahlina, ‘Local Histories, European LGBT Designs: Sexual Citizenship, Nationalism, and “Europeanisation” in Post-Yugoslav Croatia and Serbia’, in Women's Studies International Forum, vol. 49, (Pergamon, 2015), 73–83; Melinda W. Moore and John R. Barner, ‘Sexual Minorities in Conflict Zones: A Review of the LITERATURE’, Aggression and violent behavior 35 (2017): 33–7; Theresia Thylin, ‘Violence, Toleration, or Inclusion? Exploring Variation in the Experiences of LGBT Combatants in Colombia’, Sexualities (2019): 1363460719830348.

9 Nicole Maier, ‘Queering Colombia's Peace Process: A Case Study of LGBTI Inclusion’, The International Journal of Human Rights (2019): 1–16.

10 Brian Michael Müller, ‘Under Priscilla’s Eyes: State Violence against South Africa’s Queer Community during and after Apartheid’, Image & Text: a Journal for Design 33, no. 1 (2019): 1–36; Nikita Dhawan, ‘Homonationalism and State-phobia: The Postcolonial Predicament of Queering Modernities’, Queering Paradigms V: Queering Narratives of Modernity (2016): 51–68; A. Lind and M. H. Marchand, ‘Engendering Violence in de/hyper-nationalized Spaces: Border militarization, State Territorialization, and Embodied Politics at the US–Mexico border’, in Feminist (Im) Mobilities in Fortress (ing) North America. (Routledge, 2016), 115–34.

11 G. Zomorodi, ‘Responding to LGBT forced migration in East Africa’, Forced Migration Review 52 (2016): 91; Kalemba Kizito, ‘Bequeathed Legacies: Colonialism and State led Homophobia in Uganda’, Surveillance & Society 15, no. 3/4 (2017): 567–72; J. Nagle, ‘What are the Consequences of Consociationalism for Sexual Minorities? An Analysis of Liberal and Corporate Consociationalism and Sexual Minorities in Northern Ireland and Lebanon’, Political Studies 64, no. 4 (2016): 854–71; Bernadette C. Hayes and John Nagle, ‘Ethnonationalism and attitudes Towards Gay and Lesbian Rights in Northern Ireland’, Nations and Nationalism 22, no. 1 (2016): 20–41.

12 Charlayne Hunter-Gault. Corrective Rape: Discrimination, Assault, Sexual Violence, and Murder against South Africa's LGBT Community (Agate Digital, 2015).

13 Duncan Breen, et al., ‘Hate crime in Transitional Societies: The case of South Africa’, The globalization of hate: Internationalizing hate crime (2016): 126–41; Melinda W. Moore and John R. Barner, ‘Sexual Minorities in Conflict Zones: A Review of the Literature’, Aggression and Violent Behavior 35 (2017): 33–7.

14 Catherine O'Rourke, ‘Transitional Justice and Gender’, in Research Handbook on Transitional Justice, eds. Cheryl Lawther, Dov Jacobs, and Luke Moffett (Edward Elgar Publishing, 2017): 16–8; Eilish Rooney and Fionnuala Ní Aoláin, ‘Transitional Justice from the Margins: Intersections of Identities, Power and Human Rights’, (2018): 1–8.

15 Paul Gready and Simon Robins, ‘From Transitional to Transformative Justice: A New Agenda for Practice’, International Journal of Transitional Justice 8, no. 3 (2014): 339–61; Pilar Riaño-Alcalá and Erin Baines, ‘Editorial Note, Special Issue on Transitional Justice and the Everday’, International Journal of Transitional Justice 6, no. 3 (2012): 385–93.

16 Arnaud Kurze, ‘The Coming Out of Memory: The Holocaust, Homosexuality, and Dealing with the Past’, KRITIKA KULTURA 33–4 (2019): 761–85.

17 Pascha Bueno-Hansen, ‘The Emerging LGBTI Rights Challenge to Transitional Justice in Latin America’, International Journal of Transitional Justice 12, no. 1 (2017): 126–45.

18 Christine Bell and Catherine O'Rourke, ‘Does feminism Need a Theory of Transitional Justice? An Introductory Essay’, The International Journal of Transitional Justice 1, no. 1 (2007): 23–44.

19 Chiseche Salome Mibenge, Sex and International Tribunals: The Erasure of Gender from the War Narrative (University of Pennsylvania Press, 2013); Valerie Oosterveld, ‘The Special Court for Sierra Leone's Consideration of Gender-based Violence: Contributing to transitional justice?’ Human Rights Review 10, no. 1 (2009): 73–98.

20 Jelke Boesten. Sexual Violence during War and Peace: Gender, Power, and Post-Conflict Justice in Peru (Springer, 2014).

21 M. Joel Voss, ‘Contesting Sexual Orientation and Gender Identity at the UN Human Rights Council’, Human Rights Review 19, no. 1 (2018): 1–22; Amy Lind. Development, Sexual Rights and Global Governance (Routledge, 2010).