In the contemporary struggle for justice and equality by sexual subalterns through the edifice of human rights, we are witnessing a polarized response that requires deeper interrogation. At one end, there is an increased criminalization of queer lives, where not just the sex act, but the very identity of homosexuals are criminalised, such as in Nigeria, Uganda, Kenya, Ethiopia, the DRC and Russia.  At the opposite end of the spectrum, the struggle for rights claims has challenged the pathologising and criminalising of homosexuality, resulting in legal recognition in countries such as Nepal, Cambodia, South Africa, several European countries, and a number of US states. The ultimate culmination point of this struggle for legitimacy rests in the recognition of same-sex marriages.

In the choice between criminality and legitimacy, legitimacy seems clearly preferable. The struggle for legal recognition would seem an obvious strategy given that it affords access, public standing, and legibility – all of which are essential ingredients for effective democratic participation. In the context of homosexuality, it may be better to have legal recognition, including the option to get married as a gay person, as opposed to having an active law that persecutes not only homosexual conduct, but the very identity of homosexuals as is happening in Nigeria, Uganda, Kenya and elsewhere. Can there be any reasonable argument against invoking human rights to challenge legal provisions that call for life imprisonment or the death penalty for being gay? The answer is clearly no. It is better not to be persecuted.

At the same time, the pursuit of human rights as a liberating and emancipatory force needs to be further interrogated through the optics of a critically queer postcolonial lens. Firstly, if gay marriage is permissible in the US or Canada or France, it cannot be based on the one dimensional reasoning that these societies are just better, more civilized, and mature than say Uganda or Nigeria. Such reasoning deflects attention, for example, from the way in which Christian evangelicals from the US have been implicated in partly producing an anti-gay agenda in these African nations. They have been driving an agenda that is received within a context where conservative sexual and gender norms constituted partly by the legacies of the colonial past continue to resonate in the postcolonial present.

Secondly, a position that continues to associate justice through the pursuit of human rights with “the West” while African countries and their leaders are cast as retrogressive and barbaric does not implicate the way in which human rights operates against a normative agenda on both sides of this equation.  There continues to exist a position across these divides that abhors homosexuality and the homosexual. He or she must be put down or not served because it is against one’s religious convictions – exemplified in the recent, though failed, efforts of the Arizona state legislature. Or in France, where the legalization of same-sex marriage witnessed some of the largest protests in Paris since the 1960’s, opposing the law coupled with an upsurge of homophobic violence against the gay community. The Paris protests illustrate that homosexuals continue to be regarded as not fully developed subjects within that cultural and political space despite legal recognition. Dominant Catholic theological notions partly constitute the liberal subject and the frames of recognisability that determine who is entitled to legal recognition and rights, and who is not.

The broader issue is that decriminalising homosexuality does not in and of itself equate with liberation and incorporation into a space of freedom and happiness. It is a release into a competing normative order that disciplines and tames the way in which one can be in the world. Sexuality and sexual desire continue to be cabined or constrained against governing sexual, gender, and cultural norms.

Thirdly, international LGBT human rights advocacy has not necessarily challenged the framework within which precarious desires and sexual subalterns are addressed and have at times reproduced the binary between those who are progressive and civilized, and those societies that remain in a state of transition until the human rights of LGBT persons are secured.  Opposing discrimination in Uganda, Nigeria, and India may take place on terms that accept the idea that homophobia is endemic to Islam or civilisationally immature countries. These interventions also tend to assume something about freedom and what freedom should look like—that is—outness as opposed to the closet.

The analysis compels those involved in sexual rights advocacy to interrogate their faith in human rights as a progressive project, and reflect on how such advocacy may simultaneously trigger coercive norms that operate to exclude other disadvantaged or discriminated groups while also reproducing cultural and civilisational divides. A similar critique has been made of women’s human rights advocacy. Sexual freedom, like women’s freedom, comes to be advocated partly through the restriction and exclusion of religious expression or demonising of the cultural other. Injustice is not clarified by linking it to essentialist assumptions about culture and religion. It takes us no further along the road in understanding the features that produce such discriminations and that cannot be limited to conservative sexual morality or culture.

While human rights, which frame the subject and understandings of freedom strictly within a liberal imaginary, appear to be something that `we cannot not want', (to paraphrase Gayatri Spivak, writing in a different context),  it is important to add  - even though it cannot give us what we want.  The conferment of recognition of subjectivity in a global context through human rights can move in the direction of becoming a totalised response and invite regulation of these once radical subjectivities. What is important to recognize is that this move, while different from one that criminalises and outlaws, is also constraining. It is not self evident that recognition and legitimacy equate to the idea of human rights as a progressive end goal. Instead, human rights operate to uphold a specific normative order, which continue to regulate, discipline and monitor the sexual “other.”

This article is part of the Human rights strand of the Liberalism in neoliberal times series that OurKingdom is running in partnership with Goldsmiths, supported by the Department of Sociology. You can read Kate Nash's introduction to this strand here. You can read Gholam Khiabany's introduction to the whole series here.

Liberalism in neo-liberal times - an OurKingdom partnership with Goldsmiths, University of London