Michael Kirby: the rainbow in Asia and the fight for gay rights in our region

The is an edited version of a speech delivered by Michael Kirby at the Sydney Institute on December 14.

On November 15, 2017, I received the welcome wake-up call at my hotel in Bangkok. It was my partner of 48 years, Johan, phoning to tell me of the outcome of the “postal survey”, just announced, in favour of an Australian law on same-sex marriage.

The vote (61.6% yes; 38.4% no) confirmed countless opinion polls. So, it was not really surprising. Such polling is pretty accurate now and could have been conducted for a fraction of the costs of the postal vote.

However, the flawed process demanded by the government had a silver lining. It propelled the federal parliament to do what 25 other countries had achieved, many of them long ago: to enact marriage for people who happened to be gay.

The legislation was finally passed on December 7, 2017, by overwhelming votes of the House of Representatives and the Senate. It had taken an awful long time.

I was in Bangkok for a conference on a rather more pressing and urgent, but connected, subject.

The meeting had been convened by the Asia Pacific Coalition on Male Sexual Health (APCOM). It was celebrating its tenth anniversary. It invited me to reflect on the struggles faced in Asia and the Pacific Islands to overcome violence and discrimination against the LGBTIQ minority: gays and trans people in the most populous countries on earth.

As I reflected on the arguments that had just been addressed in Australia, to oppose or delay gay marriages, I had plenty of time to consider the even more heroic struggles of the mostly young, multi-racial, multi-religious participants who were surrounding me.

Their struggles involved, literally, matters of life and death. Not all the news from their region was uplifting and encouraging. I was touched that they interrupted their program and asked me to tell the story about how marriage for gay and trans people in Australia was achieved. They hoped to draw from that story a message of encouragement for themselves.

Of course, I had to warn the participants of the peculiarities of the Australian scene and the need for caution in translating our delayed achievement of marriage rights in Australia to apply in the much more hostile environment of Asia.

Australia’s historical bias against gay men

In Australia, we had begun, as many of their countries did, with the same English legal heritage. It was biased against gay men.

But the process of reform had started with the change of the criminal law in 1974 in Don Dunstan’s South Australia. Until the criminal laws were changed, it was difficult or impossible to secure effective laws prohibiting discrimination, let alone laws providing for marriage. That was literally icing on the cake.

In many of the countries represented at the Bangkok conference (Bangladesh, Brunei, Malaysia, Maldives, Pakistan and Singapore) the criminal law continues to punish gays. Getting rid of those laws was proving extremely difficult both because of religious and cultural conservatism.

Throughout much of Asia and the Pacific, the victims of stigma did not have the astonishing spectacle of religious opponents solemnly denying homophobia while urging that we should do hostile things. In much of Asia, Islamic, Christian and other religious leaders outdo each other in exposing frank and honest homophobia. In many places, they whip up hostility and promote deadly violence.

At the beginning of the Bangkok conference, two days before the announcement in Australia, the opening event had honoured heroes in the struggle in Asia and the Pacific.

Awards were given to seven “heroes”. The winners were announced by Dédé Oetomo, a leader of gay and trans equality in Indonesia, who is the president of APCOM. The heroes were gathered from across the countries of Asia and the Pacific. They reduced 350 nominations to seven winners. But, in truth, they were all heroes.

From Malaysia, Khartini Slamah was named Transgender Hero. For more than 30 years she has done dedicated work for health and civil rights of transgender people.

The Community Hero award went to Chi Chia-Wei. He was the acclaimed campaigner in Taiwan whose successful struggle before that country’s highest court secured a clear holding by the court that the denial of marriage equality was contrary to the constitutional obligation of the equal treatment of all citizens.

This was a first for Asia, although the issue has been on the political agenda in Nepal and Vietnam for a decade. As happened decades earlier in South Africa, the Taiwan Constitutional Court gave the lawmakers a deadline to enact a law conforming to its holding.

The HIV Hero award was specially moving because no-one in the audience who had lived through the early burdens of HIV on gay men would not have lost friends, or known of suffering by the combined power of the HIV virus and ongoing community stigma. That award went to Gautam Yadav for his exceptional work in India as an activist, personally living openly with HIV and as role model for young people facing that predicament in India and the region.

Awards also went to outstanding scientists working in Thailand for their work as community health advocates.

From Pakistan, where there is not only the inherited criminal law combined with enormous religious hostility, I had the honour to present the Social Justice Hero award to Qasim Iqbal. He was recognised for his unflinching advocacy of gay and trans health and rights in Pakistan.

The award for the most Heroic Community Organisation was probably the most difficult to select. The room was full of activists from civil society bodies who are standing up and facing down hatred every day of their lives – nowhere more so than in Bangladesh, where the Bandhu Social Welfare Society was named the winner.

Ashok Row Kavi, a long-time advocate from India, was honoured with a special prize for extraordinary achievement over 40 years of advocacy on gay and trans rights and HIV needs.

Asia still needs champions of gay rights

These names will mean little to an Australian audience. However, with every word of these names comes a story of unmatched courage, frequently in the face of murderous hostility.

Nowadays, in Australia and New Zealand, it does not take any special courage for an adult gay, man or lesbian to stand up and say “I am gay”. “I did not choose it any more than you chose your sexual orientation or gender identity and it cannot be changed. So get over it.”

But in Asia and the Pacific, it usually takes super courage. Often the rewards are tiny and they are slow in coming. No-one enters this space in the hope of a moment of glory at a conference in Bangkok.

Still, for most of Asia, this is a dangerous space. Australians will be heroes if they recognise the high priority of supporting and encouraging those who are trying to get to first base in the countries of the region closest to us.

Of course, there has been some progress – precious little in the legislatures of Asia and mostly in the courts and civil society.

In Hong Kong, armed with a human rights gift from the departing British colonial power, the Court of Final Appeal upheld the basic right of trans citizens to marry and directed local lawmakers to bring the law into line.

In India, a strong decision of the Delhi High Court struck down the colonial criminal laws against gays, only to be overturned soon after by a two-judge bench of the Supreme Court. Now that decision is itself under further review. Strong recent judicial statements in India appear to make it likely that the Delhi High Court’s orders will be reinstated.

Leaders of the Indian legal profession, briefed by an unyielding civil society, have persisted with their challenges in the courts of India. Those courts have earlier upheld trans rights. With a socially conservative government, only the courts will defend rights of gays with legal equality. Looking to parliament for action is hopeless.

In Nepal, the old criminal laws copied from British India had been struck down by the courts. The same happened earlier in Fiji.

Modern charters of rights have frequently provided legal arguments for gays and trans litigants claiming only to be treated the same way as other citizens.We never had an equality clause in our Constitution in Australia. But in Asia they have it and are using it.

In many societies of Asia and the Pacific, criminal laws are only part of the problem.

In Japan, where there are no criminal laws inherited from the British, bullying of young gay and trans pupils at school for “disturbing the harmony of the class” present an obstacle in some ways more insidious than reforming criminal laws.

China repealed the “hooligan” offence previously used to harass gays. It has also prohibited conversion therapy, which used to be the demand of religious groups even in Australia – worthless and damaging though it was.

In South Korea there are no general criminal laws against gays. However, a special law targets gays in the military. As all young men must undergo military service, this exposes a vulnerable group to special pressure. The new president, Moon Jae-in, told an election rally in April 2017 that he was “opposed to and did not like” homosexuality.

Subsequently, he backed off these statements and apologised for “hurting feelings” by words said in an election campaign. Meantime, a newly elected National Assembly in South Korea placed the military rule on the agenda and summoned a conference to address the issue.

So, things may change. But South Korea has other problems on its mind just now.

Serious opposition to reform still to be overcome

In addition to the remarkable organisations gathered at the APCOM conference in Bangkok and in many earlier and later meetings throughout the region, agendas for action have been planned.

Activists learn from each other. They are increasingly supported by the key United Nations agencies that have now entered this field. These include the United Nations Development Program, whose interest was enlarged when Helen Clark took over as administrator. She served with great distinction.

But also the high commissioner for human rights, Prince Zeid al-Hussein, has been forthright in taking up this cause. Like the now-retired UN secretary-general, Ban Ki-Moon, he reminds everyone of the first article of the Universal Declaration of Human Rights:

All persons are born free and equal in dignity and rights.

Like Ban Ki-Moon, Prince Zeid asks the sceptics and the opponents of gay and trans rights: “What is your difficulty with the phrase "all persons”? How can you exclude gay and trans persons from their fundamental rights as human beings?

UNAIDS, UNICEF, UNESCO and other UN agencies are becoming increasingly engaged in this struggle. They give strength and reassurance that the activists are not alone; that they have the support of the UN human rights treaties; and that, in the end, they will prevail although the odds may presently seem daunting.

For all that, the situation in the region is often fraught and sometimes deadly.

When the UN Human Rights Council in 2016 appointed an independent expert to report to it on violence and discrimination on the grounds of sexual orientation and gender identity, there was great opposition to the vote in the council.

Not content, the opponents challenged the council’s decision in the Third Committee of the General Assembly, to which the council must report.

The vote in that committee was 84 nations in favour of the mandate, 77 against, and 17 abstentions. It was a close-run thing. Fifteen countries of the Asia-Pacific region voted against.

Not satisfied with this outcome, the opponents to the mandate, encouraged by conservative states, the Holy See and the International Conference of Islamic States, took the challenge to the floor of the General Assembly. Having lost there, they repeated the challenge in the Fifth Committee of the General Assembly (Budget). When they lost there, they repeated the challenge in the Plenary of the General Assembly.

Their opposition extended even to the study of violence and discrimination against people on the basis of their sexual orientation and gender identity. It is remarkable that so many countries could happily condone unredressed violence. Yet that is the case in many nations of our region. We had better face up to this reality.

While there have been some affirmative changes, there have also been even more backward steps.

Indonesia, which previously has no general criminal law against gays because of its Dutch legal heritage, has now adopted such laws in Aceh. Two young gay men were recently caned in public, with 100 strokes each, for consensual adult sexual conduct.

Islamist politicians are encouraging a change in the previously tolerant approach in Indonesia. This is serious not only for human rights of those affected, but also for the outreach policies that are essential for successful strategies in that country against the spread of HIV.

In Singapore, the courts have failed to provide constitutional protection. Modern and progressive it may seem on the surface, but Singapore voted against the mandate of the Human Rights Council.

Brunei has restored the death penalty for adult consensual same-sex activity.

And, in Bangladesh, two young men who established a gay newsletter were hacked to death in their home. No-one has been brought to justice.

Bangladesh is a violent and cruel place for gays and trans people. The bedrock of prejudice in most of these countries remains the unreformed criminal law, inherited from Britain, which they retain and nurture for prejudice and stigma, 60 years after the world came to know how irrational and unscientific such prejudice and stigma are.

So what can be done in our region?

This is an urgent question – particularly in the countries of south Asia where the violence is the daily companion in life for gay and trans people.

Lawyers and the other experts in their professional bodies need to step up the demands for reform. Among lawyers there has been a lot of progress since, in 1988, the International Commission of Jurists in Geneva decided to add homosexual rights to the program of that global lawyers’ body.

Now, LawAsia, the International Bar Association, the Commonwealth Law Association and Human Rights Watch are all demanding action in bringing the message into the influential judiciary and the legal profession so that they will see the way their countries look to others that have made large strides in recent years.

Embassies of countries that have made great strides can reach out to, and give support, to the heroes of civil society beyond the embassy wall. Many of the participants at the conference in Bangkok told of how empowering it was for them to receive invitations to events to mark important days in the gay and trans calendar.

In Bangkok, as has been regularly done, the Australian Embassy invited the leaders of the APCOM conference to a diplomatic reception to show solidarity and friendship. In some countries the American Embassy has flown the rainbow flag on key dates, so all who pass-by will get the message that a universal movement is underway. And it will not be easily stopped.

Because so many of the oppressive states are members of the Commonwealth of Nations, steps should be taken urgently to place this issue on the agenda for the upcoming CHOGM meeting. This was recommended in an advisory report on which I served in 2011. But still, the Commonwealth is among the worst silent outposts of violence and discrimination where this ground is concerned.

Transnational corporations increasingly have strong policies of outreach and inclusion for their gay and trans employees. In part they do this because research shows that it is good for business. In countries like Japan, South Korea, India and even China, these corporations will be in the vanguard for securing local reform.

Leaders needed to end LGBTIQ violence

Gay and trans leaders must themselves reach out to religious groups and enlightened faith leaders to speak up for core values, such as an end to violence and to discover love for one another.

If this could be done in Australia it can be done elsewhere in our region. It will take time. But the dialogue must be undertaken.

And the leaders of the United Nations and of member nations that have seen the light on the irrationality must make the rainbow part of their agenda.

Australia, freshly redeemed with the shockingly delayed marriage equality, should now lift its voice as a full member of the Human Rights Council. This should be a cornerstone of the policies for progress in human rights.

Just as we earlier made progress against racial stigma, gender inequality, disability discrimination, and Indigenous neglect, Australians also should honour the heroes for gay and trans equality in Asia and the Pacific. Their struggle puts our recent achievement of marriage equality in proper focus. Their struggle requires great heroism. We should offer the hand of friendship and support.

One day the violence and discrimination will be finished in Asia and throughout our region. But meantime there is a need for heroes – and a need for Australians who are their supporters and friends.