D'Amico on Cotter, 'Ask No Questions'

Author: 
Anne-Marie Mooney Cotter
Reviewer: 
Francine J. D'Amico

Anne-Marie Mooney Cotter. Ask No Questions. Farnham: Ashgate, 2010. 318 pp. $99.95 (cloth), ISBN 978-0-7546-7791-8.

Reviewed by Francine J. D'Amico (Associate Professor & Director of Undergraduate Studies in International Relations, Maxwell School of Citizenship & Public Affairs, Syracuse University) Published on H-Human-Rights (June, 2012) Commissioned by Rebecca K. Root

Legal Limbo: Asking Questions about Sexual Orientation Legislation and Litigation

In Ask No Questions, Anne-Marie Mooney Cotter presents an ambitious effort to catalog human rights legal instruments applicable to sexual minorities.[1] The introduction explains that the study examines legislation and litigation mainly in countries with a common law background and use of the English language as well as “a predominant role in the fight against discrimination” (p. 2). The first chapter sets forth basic definitions, citing Amnesty International’s assessment of human rights violations based on sexual orientation and gender identity and summarizing the Yogyakarta Principles and the Declaration of Montreal.[2] Subsequent chapters examine relevant human rights institutions, instruments, and actions in the UN system (chapter 3); Australia and New Zealand (chapter 4); Africa and South Africa (chapter 5); Canada, Mexico, and the United States (chapter 6); the North American Free Trade Agreement (NAFTA) (chapter 7); the United Kingdom and Ireland (chapter 8); and the European Union (chapter 9).

Overall, Mooney Cotter presents a valuable overview of the “state of the law” with regard to sexual orientation discrimination legislation and litigation. Her summary is optimistic--and perhaps too sanguine. She examines the letter of the law in meticulous detail, but sometimes fails to assess its application (or lack thereof), neglecting the politics and context of the law. The volume would be more helpful if she had clearly distinguished between current practice and her own advocacy for an interpretation not yet used in practice--that is, between the “is” and “ought” of contemporary human rights law. For example, Mooney Cotter argues that the “other” category often included in human rights documents can or should cover sexual orientation discrimination, but she needs to clarify that this language typically has not been used to do so in most cases and contexts. By arguing simply that the “other” category ought to be used to challenge discriminatory practices against sexual minorities, Mooney Cotter misses the opportunity to advocate for the inclusion of explicit and unequivocal language protecting sexual orientation and gender identity in human rights legislation. Without this explicit language, human rights legislation leaves sexual minorities in legal limbo.

In her introduction in chapter 1, Mooney Cotter writes that her goal is to “outlin[e] important legislation in the area, with no particular position argued necessarily,” yet she does clearly articulate a substantive legal philosophy and political strategy with regard to the law and sexual orientation discrimination: “Law is a powerful tool, which can and must be used to better society” and “Sexual orientation discrimination and injustice can be undercut through the effective use of both the law and the courts” (pp. 2, 3). She further advocates “a commitment to equal rights, equal responsibilities, and equal opportunities for the equal participation of all regardless of sexual orientation in all national, regional, and international bodies” (p. 11). The likely audience for this text is, therefore, not only academics but also legal practitioners and human rights activists. Mooney Cotter’s compilation provides a useful reference source for human rights researchers and advocates and for undergraduate and graduate courses on comparative and international law.

Chapter 2 excerpts the full Preamble and Principles 1, 2, 3, 12, and 28 of the Yogyakarta final statement and summarizes other passages, providing a very helpful introduction to the principles. However, Mooney Cotter does not analyze the process by which the principles were crafted or the way they have been received and subsequently utilized (or not) by governments and international organizations. Similarly, the Declaration of Montreal is excerpted at length, but, again, neither its impact nor its utilization is analyzed. A contextualization of both these key foundation documents would be welcome. This pattern, in which the author details legislation and executive policy and briefs court cases but neglects contextual analysis, persists throughout the volume. These sources do provide a foundation or infrastructure for the development of human rights protections for sexual minorities, but Mooney Cotter gives the reader an inventory asserting their potential utility without, for the most part, assessing the political feasibility of applying these instruments in the current context.

Chapter 3 details the international human rights treaty framework, which Mooney Cotter argues can be invoked to support antidiscrimination protection of sexual minorities. However, Mooney Cotter should clarify both at the outset and at intervals throughout the text that none of these treaties explicitly identifies sexual minorities as a protected class and none has yet been used successfully to press rights claims by people who identify as lesbian, gay, bisexual, transsexual, intersexual, or queer (LGBTIQ). For example, in excerpting the Statute of the International Court of Justice (ICJ) and passages from the documents comprising the international bill of human rights--that is, the Universal Declaration of Human Rights (UDHR); the International Covenant of Economic, Social, and Cultural Rights (ICESCR); and the International Covenant for Civil and Political Rights (ICCPR)--that might be extended to include sexual orientation discrimination, Mooney Cotter describes but does not assess whether the ICJ today has had the opportunity to apply these rights claims or protections for cases involving sexual minorities. This would require an analysis of both the relevant actions (or inactions) and the composition of the court, including the background of the judges and the treatment of sexual minorities in their countries of origin. The ICJ has been seen as a rather conservative force in international law, at least until very recently, so Mooney Cotter’s high expectations for the ICJ seem overly optimistic.[3]

Chapter 4 catalogs human rights legislation in Australia and New Zealand, both of which have adopted explicit rights protections for sexual minorities. Australia’s Discrimination Act (1991) prohibits discrimination on the grounds of “sexuality or transsexuality” and the Workplace Relations Act (1996) prohibits termination of employment based on “sexual preference” (pp. 56, 63). Mooney Cotter reports that in the case Toonen v. Australia (1992), the Australian Human Rights Committee held that references to nondiscrimination based on sex and “equality before the law” as articulated in the ICCPR “should be taken to include sexual orientation, creating a precedent” (p. 68). This led to the repeal of a Tasmanian state law criminalizing sexual acts between consenting adult males. Unfortunately, here Mooney Cotter overstates that the precedent applies to the entire “UN human rights system,” as the Australian Human Rights Committee has no jurisdiction at the international level, and no UN-authorized criminal tribunal has subsequently applied this standard. In New Zealand, the Human Rights Act (1993) as amended (2001) prohibits discrimination based on sexual orientation, defined as “heterosexual, homosexual, lesbian, or bisexual,” and exceptions to equal treatment requirements are allowed to protect privacy in domestic employment in private households as well as counseling and courses “on sexual matters or prevention of violence” (p. 75). That is, New Zealand’s law allows positive discrimination or different treatment for people who are differently situated, but Mooney Cotter cites no court cases in which this legislation has been invoked. She concludes: “Despite strong legislative provisions in both Australia and New Zealand, there is still progress to be made to achieve equal outcomes and opportunities for all. Equality and the rights contained within the legislation rely on the overall legal system as well as cultural attitudes for implementation and enforcement. However gaps do exist ... in the manner in which [legislation] is enforced” (p. 81). However, Mooney Cotter offers no concrete evidence, data, or case analysis to support this assertion.

Chapter 5 excerpts passages from the Charter of the Organization for African Unity (OAU) and Charter of Rights and Freedoms but does not contextualize this analysis with reference to recent events where governments have targeted sexual minorities with anti-LGBTIQ legislation. She seems to assert that the legal tools exist and simply need to be utilized. She inventories the tools but does not evaluate the possibility of using these tools successfully in the real world of legal practice and national, regional, and international politics, especially in light of recent government actions, such as those in Uganda.[4]

In chapter 6, Mooney Cotter offers the most richly contextualized analysis of human rights legislation and litigation in the text in regard to Canada and the United States, but much less so on Mexico. A Canadian national, Mooney Cotter does provide some contextual analysis on the progressive development of rights protections for sexual minorities in Canada, which stand in stark contrast to the dearth of such protections in the United States. For both the Canadian and U.S. contexts, concrete evidence and case analysis are abundant. However, the comparative imbalance in the chapter is glaring: there are over fifteen pages on Canada; fourteen pages on the United States; and only a little more than one page on Mexico, perhaps due to a lack of accessibility of legal materials in English.

In chapter 7, Mooney Cotter summarizes the NAFTA economic agreement in extensive detail and notes how some provisions of the treaty may affect workers who identify as sexual minorities but cites no pending LGBTIQ rights litigation and does not discuss on-the-ground advocacy. Again, treaty provisions are excerpted at length, but there is no mention of explicit antidiscrimination protection for sexual minorities in any provision cited. She argues that this is implicit, but offers no evidence that a legal challenge based on any NAFTA treaty provisions has or can succeed. Similarly, the North American Agreement on Labor Cooperation affords no explicit protection from discrimination for sexual minorities, as Mooney Cotter herself notes, nor does the Inter-American Democratic Charter (IADC). However, the nondiscrimination declaration introduced at the UN General Assembly in December 2008 by the permanent representative from Argentina and supported by a number of Latin American countries does give some hope that human rights protections can successfully be extended to sexual minorities in the Americas.[5] This kind of analysis would be most helpful rather than noting, for example, that the IADC antidiscrimination provision in Article 9 “should include sexual orientation” since the provision does not do so explicitly (p. 208).

Chapter 8 provides a very thorough reading of both EU legislation and some case litigation regarding the rights of sexual minorities. Here it would be helpful if Mooney Cotter had offered a note of caution regarding legislative provisions that can potentially be used against sexual minorities, as in, for example, the codification of gender-based occupational qualifications “to preserve decency and privacy” in Section 7 of the Sex Discrimination Act of 1975 (p. 215), which may or may not be superseded by the Equality Act of 2006 and the Employment Equality Regulations of 2003, which do explicitly prohibit discrimination based on sexual orientation and gender reassignment. An analysis of how these have been or will likely be interpreted and applied, especially since the latter contains an exception for a “genuine occupational requirement” in Article 7, would be most enlightening (p. 223). Mooney Cotter’s inventory of EU legislation as well as litigation raises a vital strategic question for scholars, advocates, and practitioners: can a litigious strategy to advance human rights protections for sexual minorities succeed in European countries outside the European Union?

This detailed articulation of what the law is and how it might be used to combat discrimination and to advance legal protections for sexual minorities also suggests the need for researchers to look to the broader sociopolitical context to see how nongovernmental organizations (NGOs) are contributing to and engaging with recent legal developments around sexual orientation and gender identity. For example, Mooney Cotter mentions the work of Amnesty International but not that of Human Rights Watch or other specifically LGBTIQ-focused NGOs, like the International Lesbian and Gay Association and the International Gay and Lesbian Human Rights Commission.[6] Public opinion on this issue also merits examination, given the recent backlash not only in Africa, Asia, and the Middle East but also in many developed countries.

The text provides ample direction for further research. For example, Mooney Cotter’s juxtaposition of national, regional, and global human rights law suggests the need to explore connections between national and international levels and across regions: which are leading, which are lagging, and why? The political, economic, and sociocultural contexts in which LGBTIQ human rights legislation is generated needs further explication, as does the contentiousness of past efforts to include LGBTIQ rights in antidiscrimination legislation as well as the ongoing resistance encountered in application, interpretation, and implementation of current human rights legislation vis-à-vis LGBTIQ-identified people. In short, Mooney Cotter says what the law is, presenting a descriptive summary rather than a fully comparative and contextual analysis of legal precedent and practice. A full analysis would be most instructive for practitioners and human rights activists: such an analysis would examine how sexual minority rights have been advocated and protected in countries that have seen success (that is, those she has studied) compared with where they have been less so to uncover patterns. For example, are there stages evident in this process, say, from decriminalization to nondiscrimination (her goal)--which I might call a negative right based on “tolerance” (her term)--to a more positive and inclusive liberalization? Her selection of cases avoids one of the biggest challenges for progress on human rights for sexual minorities: cultural relativism. For example, how does the legal situation in Anglo-Caribbean common law countries, such as Jamaica, compare to Mooney Cotter’s findings in countries with similar legal systems, and why have these been excluded from the analysis?

Finally, a minor concern is that the text occasionally suffers from spotty referencing. For example, in chapter 1, Mooney Cotter cites Amnesty International as her source for definitions of key terms, but without providing a specific reference citation, so the exact source is unknown. The source could be Amnesty International’s global Web site; a national affiliate Web site; or a print publication, such as Breaking the Silence.[7] Similarly, the author lists no Web resources in text, notes, or bibliography, and she provides full references for litigation but only partial references for legislation. While these details are more properly the responsibility of the publishing editor rather than the primary author, the absence of these citations makes subsequent research more challenging for the reader.

Notes

[1]. I use the term “sexual minorities” to refer to all people who self-identify as lesbian, gay, bisexual, transsexual, transgender, intersexual, queer (LGBTIQ), or other-than-heterosexual as well as anyone who has been subjected to harassment, discrimination, and violence because of a perceived sexual orientation or gender identity.

[2]. “The Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity” (Yogyakarta, Indonesia, March 2007), http://www.yogyakartaprinciples.org/; and International Conference on Lesbian, Gay, Bisexual and Transgender Human Rights, “Declaration of Montreal” (Montreal, Quebec, Canada, 2006), http://www.declarationofmontreal.org/declaration/.

[3]. On the ICJ, see Edward McWhinney, Judge Manfred Lachs and Judicial Law-Making: Opinions on the International Court of Justice, 1967-1993 (Boston: Nijhoff, 1995); cf. Thomas J. Bodie, Politics and the Emergence of an Activist International Court of Justice (Westport: Praeger, 1995).

[4]. Frank Mugisha, “Gay and Vilified in Uganda,” New York Times, December 22, 2011; and Robin Dixon, “Uganda Lawmakers Remove Death Penalty Clause from Anti-gay Bill, ” Los Angeles Times, May 12, 2011.

[5]. Neil MacFarquhar, “In a First, Gay Rights Are Pressed at the U.N.,” New York Times, December 13, 2008.

[6]. Information on the International Lesbian and Gay Association, established in 1978, is available at http://ilga.org/ and information on the International Gay and Lesbian Human Rights Commission, founded in 1991, can be found at http://www.iglhrc.org/cgi-bin/iowa/home/index.html.

[7]. Amnesty International, Breaking the Silence: Human Rights Violations Based on Sexual Orientation (London: Amnesty International UK, 1997), http://www.amnesty.org.

Printable Version: http://www.h-net.org/reviews/showpdf.php?id=31384

Citation: Francine J. D'Amico. Review of Cotter, Anne-Marie Mooney, Ask No Questions. H-Human-Rights, H-Net Reviews. June, 2012. URL: http://www.h-net.org/reviews/showrev.php?id=31384

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