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Homosexuality and Human Rights

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During the last centuries, homosexual people have fought hard to live free and have equal rights – at least theoretically, as they still face resentment and discrimination. In some countries, homosexuality is punished by death. Sociology doctoral candidate Felipe Pérez-Solari researches this subject and compares how South American and European Human Rights Courts deal with homosexuality.

You work on a very current and emotional subject area – homosexual rights. What exactly are you studying and why did you choose this topic?
Of course, it’s a really emotional topic. It touches upon not only justice and equality but also ethics and morals. But aside from the emotional discussion, there are scientific questions around the relationship between human rights and homosexuality. For example, during the last Commonwealth Games in Australia, a worldwide event of importance in English-speaking countries that are related to the UK, a debate on the issue of LGBTI [i.e. Lesbian, Gay, Bisexual, Transsexual and Intersexual] rights sparkled immediately. There are several countries in the Commonwealth where homosexuality is prohibited and it has been intensively discussed in mass media. We kind of assume that there is a relationship between fundamental human rights and homosexuality. We have an institution that you would expect to reflect LGBTI issues - that is the International Courts of Human Rights. I look at how society and the courts of human rights in Europe and South America deal with homosexuality and other sexualities in plural.
 
Why did you choose this topic?
I spent the last seven years studying topics related to the problem of fundamental rights. My Bachelor thesis was about how it was possible for Chile, in Latin America, to still have the same constitution that was written and enacted by the dictatorship in 1980. In the 1990s, as we, the Chileans, returned to democracy, we would still have the same constitution as before. I was interested in how the idea of citizenship is reflected in a constitution developed by the dictatorship.
In the thesis, which was my master’s, my idea was that the idea of citizenship created within the dictatorial constitution entailed a number of important decisions about fundamental rights in terms of law, creating, in turn, follow-up problems. I have done research on organizational decisions that were made, and then I focused myself on the Constitutional Court as an organization[i]. I analyzed different cases, especially related to collisions between fundamental rights like women’s rights or LGBTI-rights.
Then I started to think about the idea of “updating fundamental rights”. Metaphorically speaking, it’s similar to updating an app on your phone. You have a structure in the past that is assumed to be needed in the future. When you update WhatsApp, you can code more smileys into it, but you expect that you will be able to communicate in the same way as before. So, when you reflect on the idea that a group of people relates to the idea of fundamental rights very closely, then you cannot “downgrade” to the situation of the past.
Let’s take the women’s suffrage as an example. The assumption that women, for example here in Germany, will no longer be allowed to vote from next month on, is a highly improbable one. The politician who decides as such, will be faced with large-scale protest - at least, that is the expectation. In my dissertation I intend to demonstrate how these same transitions occur with the demands and the claims of LGBTI people.
If you look back at the treatment LGBTI people received 30 years ago, today this level of discrimination has waned in most countries. In that transition, millions of factors play a role, but what is the special role of international human rights courts? What do we expect the international human rights courts to do? For example, I have a case, where the state doesn’t allow lesbian women to protest in the streets. The interpretation could be that the state is in this case in violation of the freedom of speech, and that the court must reflect this claim and its context and decide whether it is a violation of human rights or not. But human rights are not rigid ideas. It is a code that is tied to a set of rules. And those rules stem from the operative logics of law. 
 
Nowadays homosexuality is pretty normal here. Girls kiss each other in the streets, guys hold hands and rainbow flags wave from buildings. On the other hand, it’s not, lots of people hesitate to come out. They fear stigmatization or at least disadvantages and prejudice in their daily lives. Are we not as liberal as we think?
Let’s pose a formal question: Why do people have emotions against homosexual people? It is complicated because we have to look for an answer in psychological, religious, political or moral terms. These emotions or prejudices can neither be explained by simply calling it a pathology or sickness, or by reference to the very general concept of homophobia. The sociological answer to the question why a person has that kind of sensations is very complex. But if we analyze how, where and in what kind of situations people communicate about it, then this question automatically enters the scope of sociological interest. 
If two individuals drink a beer at a bar and they see two females kissing, then they can say, “that’s wrong”, “that’s disgusting” but only between them, having a private conversation. But here they would not be able to say that to the two females kissing, because the court of law forbids it, as it could be considered hate speech by a court, an attack on the persons and their dignity. Similarly, you cannot fire these persons from their jobs, if there are laws stating that you cannot discriminate against persons in organizations. You can also look at it at a different level, as in these real life cases: A gay couple in the US wanted to get married. They asked a baker to make a wedding cake. This baker was a Christian with very conservative views. He refused to because he would have to put two male figurines on top of the wedding cake and that’s not what he believed in. And another person said, “I don’t want to go to the army”, because he claimed to be a pacifist and that would go against his conscience. Are those the same things? As in both cases people vocalized their attitude, their faith, their religious beliefs that would not allow them to do certain things. The court must face this problem and try to resolve it: in fact, the case of the baker escalated to the US Supreme Court and the decision stated that there was no discrimination against the couple – the baker could not be forced to make the wedding cake for the gay couple against his individual religious beliefs. Maybe tomorrow the logic of the decision, in a different case, will be another, but the court differentiates between discrimination in interactions and that in organizations. For example, a private conversation between two people about anything and their communication on social media or them speaking while clad in a formal role - politician, judge, physician, and so on. Currently, for example, there is a discussion about the necessity of an absolute legal prohibition of “conversion therapies”, of an idea that someone could be able to transform a person into a heterosexual person and thus cure them.
The last 300 years have witnessed one rather constant expectation. And that expectation is, that all people are equal in dignity and liberty and that you have to justify dissimilar treatment. So the first theoretical question I am trying to resolve is how the relationship between those expectations and sexual orientation of LGBTI-persons emerged? What made it possible? How it has become a topic of discussion?
 
In your research, did you find something that was impressive either negatively or positively?
The case of Germany was for me particularly astonishing. During the unification process under Bismarck, the German state created the crucial penal court paragraph 175. That law is a piece of history. It had different stages that you can try to analyze. For example, that in Germany - I mean by that the territories that in that time were considered Germany - the discussion was vivid. Not in all of the “Länder” sex between males was forbidden. But §175 changed the scenario: Germany, as a unitarian state, had to have one criminal law. Although it had seen several major reforms, the paragraph focused on the age of sexual consent and was in use until 1994 in Germany. Under very special conditions, that we cannot elaborate on here in detail, one could still be punished for a felony related to “homosexuality” until 1994. We can think of it as the transformation of “sex between men” into an act punishable by law: dissimilar treatment of the sexual orientation. 
Germany also witnessed the birth of the first LGBTI social movement in history. The first wave of the homosexual movement started there at the end of the 19thcentury. The major figure was Magnus Hirschfeld, who worked as a doctor in Berlin. Hirschfeld was a top-level scientist who was at that time involved in intensive scholarly discussion with experts like Sigmund Freud and who was the editor of an extremely important scientific journal about LGBTI topics: the “Yearbook for Intermediate Sexual Types” [Jahrbuch für sexuelle Zwischenstufen]. Hirschfeld said, “OK, we must demonstrate scientifically that homosexuality is not a disease, you cannot find a cure, you cannot punish it, and it is just another way to express your sexuality.” The Motto was: «Per scientiam ad justitiam» (“through science to justice”). That was at the beginning of the 20thcentury.
Science vs Pop Culture

His office shows that science and pop culture don't necessarily exclude one another. In Felipe Perez-Solaris research, both give important insights. Photo: Volker Lannert/Uni Bonn

In the 20’s, Berlin had an enormous presence of different types of bohemian restaurants and clubs for LGBTI people. The El Dorado was most popular with all kinds of people including transsexual and intersexual people. You would have transvestite contests that had a similar logic to the contemporary “Drag Queen Contest” that everyone can see in the TV-series RuPaul's Drag Race. All this happened before the second World War, before the Nazis and the open persecution of LGBTI-persons. And even before and during the Weimarer Republik, Hirschfeld gave transsexual or intersexual people a special ID, authorized by the police of Berlin, stating that “this person is biologically a man, but he wants to dress like a woman” and that it is not a sickness, but a different way of expressing his own sexuality. These IDs were approved and signed by the police of Berlin! We’re speaking about the beginning of the 20th Century! In fact, Hirschfeld wrote in the already mentioned “Yearbook for Intermediate Sexual Types” an obituary honoring Leopold von Meerscheidt-Hüllessem, the Director of the Berlin Police. Hirschfeld had a really close relationship to von Meerscheidt-Hüllessem. The friendship started when von Meerscheidt-Hüllessem invited Hirschfeld to a meeting and asked for an explanation about these rare sexualities. He was interested in scientific explanations that included Hirschfeld’s experiences as a physician. From then on, von Meerscheidt-Hüllessem, the Polizeidirektor, maintained a close relationship with the leader of the Scientific-Humanitarian Committee (Wissenschaftlich-humanitäres Komitee) - Hirschfeld. The Committee also organized help for LGBTI people (medical treatments, legal counseling, etc.) and fought against paragraph 175. One time the Committee tried to erase §175 and even started collecting signatures from many famous persons. In order to support the decriminalization of sex between men, Albert Einstein also signed the letter. This period of German history raised many questions that you can find in the discussion about so-called LGBTI-rights nowadays.

 
And now 80 years later, being homosexual is still a big deal in some countries. You mentioned the Commonwealth Games as an example. Bishop Victor Gill of Trinidad said, “the gay agenda is being forced on us” and that “homosexuals must not trample on the rights of heterosexuals or Christians.” More than 90 per cent of Commonwealth citizens live in jurisdictions that criminalize gay people.
It is a collision of different logics that you can identify in modernity. For example, the president of Uganda said “the mouth is only to eat. Not to have sex with”. In a lot of countries, the discussion is curtailed and stifled by merely saying “No! We are different. We have a different culture”. In his speech at the 54th United Malays National Organization General Assembly (2003), the former president of Malaysia, Mahathir Mohamad, said that homosexual rights were a cultural imperialism from Europe: “The world that we have to face in the new decades and centuries will see numerous attempts by the Europeans to colonize us either indirectly or directly. If our country is not attacked, our minds, our culture, our religion and other things will become the target.”
Of course, saying that this is a problem exclusively observable outside “occidental societies” is an unacceptable reductionism. Look for example at the current worldwide discussion about “gender ideology”, especially emanating from occidental right-wing political parties, which is an extremely successful political reduction of topics related to gender and sexuality. 
 
Facing all these accusations: Why does society seem to expect LGBTI people to address their sexuality in the first place? For example, in some Commonwealth countries LGBTI people are not allowed to join the military. We do not ask heterosexuals about their sexual preferences.
I have a good friend in Chile, Jaime Parada, he was the first openly gay politician elected there. I’ve known him for about 20 years. We often discuss this topic and the discussions tend to be emotional. He always says, that coming out means that you can show yourself as a person, it is to say as a totality, but this part of you is only your sexuality and doesn’t transform you into a special person. He recently published a book about that topic with Raffaela di Girolamo, herself a psychologist, called “Coming out of the Closet” - Salir del closet
It’s like, for example, this huge movement in the United States in the 1970s to forbid LGBTI persons, especially homosexual men, to teach in schools. Anita Bryant and her campaign are the classical example. The argument at first was that homosexuals do disgusting sexual practices and that they would try to transform kids into gay people. That means that you are “de facto” prohibiting the self-presentation of LGBTI persons in their role as teachers.
You can identify a similar problem with the presentation of self, for example, right now with the Me-Too Movement. The problem related to fundamental rights and self-presentation is “we, women, suffer from sexual assault”. We cannot present ourselves in equality and dignity because there is sexual violence against women. And of course, it is real. When you speak about it, it is not only a headline in the newspaper. All these famous actresses of Hollywood denounced the producer Harvey Weinstein. But they also shared their experience on Facebook and Twitter. They talk about the problems of self-presentation, discrimination and sexual violence against women.
With coming out, it’s the same thing. As an observer, I can see how society would treat me as a homosexual person and I can try to experience how that feels. For example, how it feels being with a person for 10 years and not being able to marry them. This entails everyday life problems: I want to buy a house. The problem is that, of course, you need money, you need a credit but when you’re not married, you cannot combine the salaries. And the bank treats you as if you were two individual persons without any formal connection to each other; you don’t have any legal instrument demonstrating that you are a couple. And there are a lot more problems in everyday life. What happens when sexual intercourse between men is illegal and you’re a lawyer or a policeman and the legislation said “if you’re a lawyer or policeman you are forbidden to commit crimes yourself”. Or you are a psychiatrist and homosexuality is defined as a disease. There you have the paradox that you have to say “I am sick!” inside your very same professional category, inside the same science you practice. What about the gay priests? Will you go to hell? Or in sports, where you have several contractual terms that are usually related each other. The terms take another kind of context into the consideration, not only sports, for example, some areas of your personal life. When you are a really famous runner and have a contract with some cereal company focused on kids, you may lose that contract in case you come out because the company might consider you coming out as a threat to popularity and hence as a threat to a successful advertising campaign. And there are lots and lots of other examples. So, it is a hard decision whether to come out or not. 
 
Your doctoral supervisor at Forum Internationale Wissenschaft (FIW), Prof. Rudolf Stichweh, is a distinguished researcher. How did you meet? You are from Chile and did your master’s degree in systemic analysis at the University of Chile. Bonn isn’t exactly around the corner.
Professor Stichweh in my understanding of sociology is a main reference for a number of topics, but my main interest lied and still lies today with his conceptualization of world society with its special kinds of structures that you cannot easily reduce to just organizations and interactions between individual persons, the classical topics in sociology. The work of Professor Stichweh on this radically new platform of observation of society is without question groundbreaking. I have studied sociological theory and specifically systems theory for many years, and yet before coming to Germany I already read some translations of Professor Stichweh in English and Spanish. I then managed to meet him during a big congress in Chile on the occasion of the 30th anniversary of Social Systems [Soziale Systeme], written by Niklas Luhmann in 1984. Professor Stichweh was there and I presented him my ideas. I tried in that moment to outline my research problem, the relationship between homosexuality and human rights, being careful not to trivialize the problem by giving easy answers. Using some key ideas of Professor Stichweh allowed me to formulate crucial critique on the current perspectives on the topic.  And well, after a lot of preparation and preceding academic experiences I am here in Bonn because it’s where professor Stichweh is based. 
 
What is it like doing research in such an exclusive environment?
Well, it was a really nice experience when I arrived here, because you have people here at the FIW working on different topics, with different approaches, but the main objective of the institute is to observe worldwide problems with universalistic tools, so that we can try to pursue, identify and resolve actual and complicated scientific problems. It’s a really good environment for discussions because it’s really focused on research. 
I can cite a couple of examples from my department, the Department for Comparative Research on Democracies, that allows me to get high quality feedback from my fellow researchers. Dr. Evelyn Moser and Anna Skripchenko, for example, currently investigate the role of NGO’s in Russia, and I can refer some questions about the understanding of freedom of speech back to my own research. Also Dr. Lena Laube, who studies statelessness as a problem of the world society, more than once helped me clarify different dynamics of the immigration process in case the person in question is an LGBTI person, for example, in the case of asylum seekers. 
 
Last but not least: In case I was to ask you about your sexual orientation, how would you react?
It’s a phenomenon that you have with these kinds of topics, that are both old and new, and that are related to minorities. For example, if you close your eyes and go to the United States and think about a professor tackling the issue of slave trade in the United States - will he be a “white guy” with blue eyes or an “Afro-American”?  You can pose the same question about a professor doing research on feminism – which gender to you expect the professor to have? You probably expect a woman there. And in my case, it’s the same. People ask me about my own sexuality because you have a certain kind of expectations about it. We can try to transform that expectation into a sociological question. Women study women’s rights. Afro-Americans study Afro-Americans rights and gays study gay rights. So, many people wonder if I’m gay myself - and in Germany it’s always the last question. Even my girlfriend - she is German - thought at first, because of this topic, that maybe I was gay. 

I don’t know if I’m right or not, but having 90% of women in my class here at the university in the course on fundamental rights and homosexuality, is probably because women are more at ease with the topic, independent of their own sexual orientation. For them it’s like, “It doesn’t matter, I can take this course and there won’t be bullying by my other friends.” It scratches gender theory and masculinity, which seems to make men feel insecure. For me it’s a really interesting topic, with relevant research to be done, and a chance to clarify a lot of things.

For further reading

Hirschfeld M.: Berlins Drittes Geschlecht. Berlin, 1904.

Parada, J. & di Girolamo, R.: Salir del Clóset: Todo lo que hay que saber. Santiago de Chile, 2018.

Pérez-Solari, F.: El Tribunal Constitucional como organización ante el imperativo normativo de los derechos fundamentales. In: Arnold, M., Cadenas, H., y Urquiza, A.. La organización de las organizaciones sociales: Aportaciones desde perspectivas sistémicas. Santiago, 2014. S. 359-376.

Johnson, C.: Sexual Citizenship in a Comparative Perspective: Dilemmas and Insights. In: Sexualities, 20(1-2), 2017.159–175.

Felipe being interviewed

When Felipe Pérez-Solari speaks passionately about his research, his whole body moves. Photo: Volker Lannert/Uni Bonn

Forum Internationale Wissenschaft (FIW)

The Forum Internationale Wissenschaft focuses on research on democracy, science, and religion. But researchers at the FIW do not only conduct research about the public, they also invite them in for open exchange. Find out more.

Lesbian and Gay Federation in Germany (LSVD)

Do you have any questions? The LSVD provides general information as well as legal support. Most of the website is in German.

Federal Agency for Civic Education (bpb)

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