LGBT people in the United States continue to experience discrimination because of their sexual orientation and gender identity, despite increasing acceptance of LGBT people and legal recognition of marriage for same-sex couples nationwide. This ongoing discrimination can lead to under- and unemployment, resulting in socioeconomic disparities for LGBT people. In addition, empirical research has linked LGBT health disparities, including disparities in health-related risk factors, to experiences of stigma and discrimination.
Currently, federal statutes in the United States do not prohibit discrimination based on sexual orientation or gender identity in employment, housing, or public accommodations, leaving regulation in this area primarily to state and local governments. This creates a limited and uneven patchwork of protections from discrimination against LGBT people across the country.
Despite public support for LGBT-inclusive non-discrimination laws across the country, in 28 states there are no statewide statutory protections for LGBT people in employment, housing, or public accommodations. To date, only 20 states and the District of Columbia have enacted comprehensive non-discrimination statutes that expressly prohibit discrimination based on both sexual orientation and gender identity in all three of these areas. One additional state has statutes that prohibit sexual orientation discrimination, but not gender identity discrimination, in these areas. One other state prohibits discrimination based on sexual orientation and gender identity in employment and housing, but not in public accommodations.
In states without statutes that prohibit discrimination based on sexual orientation and/or gender identity, there are other policies that afford LGBT people at least some limited protections from discrimination. In some of these states, state executive branch officials have expanded non-discrimination protections for LGBT people under their executive or agency powers. For example, in three states, state government agencies have expanded broad protections from sexual orientation or gender identity discrimination through administrative regulations. And, in 12 states without statutes prohibiting discrimination against LGBT people, governors have issued executive orders that protect state government employees (and sometimes employees of state government contractors) from discrimination based on sexual orientation and gender identity. In addition, local government ordinances provide another source of protection from discrimination; however, these laws are generally unenforceable in court and provide much more limited remedies than statewide non-discrimination statutes.
In recent years, lawmakers have increasingly attempted to limit the reach of state and local non-discrimination laws, which can leave LGBT people vulnerable to discrimination. For example, some states have passed laws allowing religiously motivated discrimination and others have passed laws prohibiting local governments from enacting their own non-discrimination ordinances that are broader than state non-discrimination laws. While most of these bills have not passed, the recent increase in the introduction of these measures suggests that state legislatures will continue to consider rolling back non-discrimination protections for LGBT people in the coming years.
Continued efforts are required at both the state and federal levels to ensure that LGBT people are fully protected from discrimination based on their sexual orientation and gender identity throughout the United States, including federal legislation and statewide bills in over half the states.
Article
Christy Mallory and Brad Sears
Article
Holning Lau
Courts have played an integral part in advancing the rights of lesbian, gay, bisexual, and transgender (LGBT) communities in many parts of Asia. Yet courts in other parts of Asia have entrenched LGBT subordination. A vast expanse separates Asia’s most progressive LGBT judicial decisions from the most oppressive. This divergence stems from various factors, including differences among Asian courts’ judicial philosophies and cultural backdrops.
Judicial developments in Asia have disrupted conventional narratives in Anglophone literature about LGBT rights. Conventional wisdom says there is a standard sequence for developing LGBT rights. It is commonly believed that countries will protect sexual orientation rights before gender identity rights; that they will legislate against discrimination before legalizing same-sex marriage; and that legal protections of LGBT rights begin in the West, and then the rest of the world subsequently imports these legal constructs. Developments in Asia have, however, challenged these narratives.
While many Asian courts have galvanized reforms to protect LGBT rights, it is important to remember that these courts are nonetheless constrained in their ability to effectuate change. Case studies from Asia demonstrate that protecting LGBT rights often requires political branches of government to cooperate with courts. Political actors may resist implementing court-ordered reforms, especially if public opinion does not support the reforms.
Article
Matthew Waites
The Commonwealth is the international governmental organization of states that emerged from the British empire, and since 2000 it has emerged as a focus for contestation relating to the regulation of same-sex sexualities, gender diversity, and diverse sex characteristics. Following colonial criminalizations focused on same-sex sexual acts, and later formal decolonizations, there have appeared many national movements for decriminalization and human rights in relation to sexuality and gender. The Commonwealth has emerged as a site of politics for some significant actors claiming human rights in relation to sexual orientation, gender identity and expression, and sex characteristics. This has been led by specific organizations of lesbian, gay, bisexual, and transgender (LGBT) people, increasingly with intersex people and allies, but it is also important to consider this in relation to queer people, understood more broadly here as people in all cultures experiencing forms of sexualities, biological sex and genders outside the social structure of heterosexuality, and its associated sex and gender binaries. A range of forms of activist and non-governmental organization (NGO) engagement have occurred, leading to shifts in Commonwealth civil society and among some state governments. This has required researchers to develop analyses across various scales, from local and national to international and transnational, to interpret institutions and movements.
The British Empire criminalized same-sex sexual acts between males, and to a lesser extent between females, across its territories. In certain instances there were also forms of gender regulation, constraining life outside a gender binary. Such criminalization influenced some of those claiming LGBT human rights to engage the Commonwealth. Research shows that a majority of Commonwealth states continue to criminalize some adult consensual same-sex sexual activity. Yet the history of struggles for decriminalization and human rights within states in the Commonwealth has led up to such recent important decriminalizations as in India and Trinidad and Tobago in 2018.
LGBT and queer activist engagements of the Commonwealth itself commenced in 2007 when Sexual Minorities Uganda and African allies demanded entry to the Commonwealth People’s Space during a Heads of Government meeting in Kampala. Activism has often focused on the biannual Heads of Government meetings that are accompanied by civil society forums. A particularly significant phenomenon has been the emergence of a “new London-based transnational politics of LGBT human rights,” evident in the creation from 2011 of new NGOs working internationally from the United Kingdom. Among these organizations was the Kaleidoscope Trust, which shaped the subsequent formation of The Commonwealth Equality Network as an international network of NGOs that became formally recognized by the Commonwealth. Significant developments occurred at the London Commonwealth Heads of Government meeting in April 2018; Prime Minister Theresa May expressed “regret” for past imperial criminalizations while announcing funding for Kaleidoscope Trust and other UK-based groups to use in international law reform work. These developments exemplify a wider problematic for both activists and analysts, concerning how LGBT and queer movements should engage in contexts that are still structured by imperial legacies and power relations associated with colonialism, persisting in the present.
Article
The human rights of LGBTI persons are being contested across the world—both within states and across regions. Despite decades of incremental change, in many states, LGBTI activists are beginning to rapidly advance their normative agendas, particularly in the context of protection against violence and discrimination. However, consistent backlash and opposition to LGBTI advocacy remains.
Notwithstanding decades of silence on LGBTI rights, international institutions are also beginning to rapidly include sexual orientation and gender identity in their work as well. Institutions that consist primarily of independent experts and that focus on narrower human rights issues have been especially active in including sexual orientation and gender identity in their work, either formally or informally. At the same time, largely political institutions have generally lagged behind their counterparts.
Scholarship on both sexual orientation and gender identity (SOGI) advocacy and contestation have also lagged behind political and legal developments at international institutions. Although a few works exist, particularly on the UN Human Rights Council, there are numerous other institutions that have been understudied. Further, research on the implementation of international SOGI policies has also been largely absent. SOGI advocacy and contestation continues across nearly every major international institution. Research agendas, either qualitative or quantitative are sorely needed to help better predict and explain the advancement or retreat of SOGI in international institutions and within domestic contexts.
Article
Erin C. Cassese
Intersectionality is an analytic framework used to study social and political inequality across a wide range of academic disciplines. This framework draws attention to the intersections between various social categories, including race, gender, sexuality, class, and (dis)ability. Scholarship in this area notes that groups at these intersections are often overlooked, and in overlooking them, we fail to see the ways that the power dynamics associated with these categories reinforce one another to create interlocking systems of advantage and disadvantage that extend to social, economic, and political institutions. Representational intersectionality is a specific application of intersectionality concerned with the role that widely shared depictions of groups in popular media and culture play in producing and reinforcing social hierarchy. These representations are the basis for widely held group stereotypes that influence public opinion and voter decision-making. Intersectional stereotypes are the set of stereotypes that occur at the nexus between multiple group categories. Rather than considering stereotypes associated with individual social groups in isolation (e.g., racial stereotypes vs. gender stereotypes), this perspective acknowledges that group-based characteristics must be considered conjointly as mutually constructing categories. What are typically considered “basic” categories, like race and gender, operate jointly in social perception to create distinct compound categories, with stereotype profiles that are not merely additive collections of overlapping stereotypes from each individual category, but rather a specific set of stereotypes that are unique to the compound social group. Intersectional stereotypes in political contexts including campaigns and policy debates have important implications for descriptive representation and material policy outcomes. In this respect, they engage with fundamental themes linked to political and structural inequality.
Article
M. Joel Voss
Europe has some of the most powerful human rights legal institutions in the world including two supranational human rights courts—the Council of Europe’s European Court of Human Rights and the European Union’s Court of Justice (hereafter, together—the Courts). After decades of relative quiet, the Courts have begun hearing more cases concerning LGBT rights. Judgments of the Courts have advanced some facets of LGBT rights like anti-discrimination in the workplace while disappointing gay-rights advocates in other areas, for example family life and asylum.
Scholarship on European courts and LGBT rights is not as developed as scholarship on norm advocacy or policy diffusion within states in Europe. The research that does exist looks at how decisions by the European Court of Human Rights and the European Court of Justice deal with current European law, how the institutions are designed, or how the supranational courts may act as agents of change or status quo institutions in shaping wider European behavior. This lack of newer research on the Courts presents ample opportunity for new avenues of research that examines not only how decisions are made at the Courts but also how states implement decisions and how states view the legitimacy of each Court.
Article
Francis Kuriakose and Deepa Kylasam Iyer
The question of LGBT rights was first examined as part of gender and sexuality studies in the 1980s, predominantly in the United States. This was a result of the LGBT movement that had articulated the demand for equal rights and freedom of sexual and gender minorities a decade before. Since then, the examination of LGBT rights has traversed multiple theoretical and methodological approaches and breached many disciplinary frontiers. Initially, gay and lesbian studies (GLS) emerged as an approach to understand the notion of LGBT identity using historical evidence. GLS emphasized the objectives of the LGBT movement in articulating its identity as an issue of minority rights within the ambit of litigation and case law. However, the definition of LGBT identity as a homogeneous and fixed category, and the conceptualization of equality rights as the ultimate project of emancipation, was critiqued on grounds of its normative and assimilationist tendencies. Queer theory emerged in the 1990s as a counter-discourse to GLS, using the individual-centric postmodern technique of deconstruction as the method of analysis. This approach opened up scope for multiple identities within the LGBT community to articulate their positionality, and reclaim the possibilities of sexual liberation that GLS had previously obscured.
Subsequent scholarship has critiqued GLS and queer theory for incomplete theorization and inadequate representation, based on four types of counter-argument. The first argument is that queer theory, with its emphasis on self as an alternative for wider social interaction, concealed constitutive macrostructures such as neoliberal capitalism, as well as the social basis of identity and power relations. The second argument highlights the incomplete theorization of bisexual and transgender identities within the LGBT community. For example, understanding bisexuality involves questioning the universalism of monosexuality and postmodern notions of linear sexuality, and acknowledging the possibility of an integrated axis of gender and sexuality. Theorization of transgender and transsexual rights requires a grounded approach incorporating new variables such as work and violence in the historiography of transgender life. The third critique comes from decolonial scholarship that argues that intersectionality of race, gender, class, caste, and nationality brings out multiple concerns of social justice that have been rendered invisible by existing theory. The fourth critique emerged from family studies and clinical psychology, that used queer theory to ask questions about definitions of all family structures outside the couple norm, including non-reproductive heterosexuality, polyamorous relationships, and non-marital sexual unions. These critiques have allowed new questions to emerge as part of LGBT rights within the existing traditions, and enabled the question of LGBT rights to be considered across new disciplinary fronts. For example, the incorporation of the “queer” variable in hitherto technical disciplines such as economics, finance, and management is a development of the early-21st-century scholarship. In particular, the introduction of LGBT rights in economics to expand human capabilities has policy implications as it widens and mainstreams access of opportunities for LGBT communities through consumption, trade, education, employment, and social benefits, thereby expanding the actualization of LGBT rights.
Article
Dominic McGoldrick
The United Nations system has been a major global site of political and legal contestation for LGBTQI human rights. However, the lack of consensus has led to major divisions within the UN’s political institutions. The independent human rights institutions that do exist within the UN system have been more progressive in advancing LGBTQI issues.
Article
Christina Kiel and Jamie Campbell
Intergovernmental organizations (IGOs) and international institutions have proliferated since the end of World War II. This development has changed the landscape of international relations not only for states, but also for nongovernmental organizations and social movements.
The advocacy of international nongovernmental organizations (INGO) plays a central role in pushing IGOs and their member states toward action. INGOs’ success in doing so depends on a number of factors, opportunity prime among them. Political opportunity structures (the institutional arrangements and resources available for political and social mobilization) determine lesbian, gay, bisexual, and transgender (LGBT) INGO access to power holders and thus their chances of bringing their concerns, and possible solutions to those concerns, to IGOs. The opportunity structures vary significantly from one IGO to the next. For example, the political opportunity structure offered by the European Union (EU) has been favorable to LGBT activism, while the United Nations is much less open to comprehensive inclusion of LGBT and sexual orientation, gender identity, and expression (SOGIE) human rights.
As LGBT issues move onto an IGO’s agenda, a symbiotic relationship develops between the IGO and advocacy organizations. The changing opportunity structures influence NGOs’ structure, strategy, and resource mobilization. Coordination between advocacy groups with similar goals becomes easier when many organizations have physical offices at IGOs. For diplomats and bureaucrats working at the IGO or national representative offices, INGOs can be beneficial, too. In particular, advocacy organizations are experts and purveyors of information. However, the interdependence between INGOs and IGOs has the potential of silencing voices that do not neatly fit into the internationalist, liberal rights-based discourse.
Besides the political opportunity structures in IGOs, the frames INGOs use to advocate for issues have been found to be essential for campaign success. One tactic that often constitutes successful framing is the grafting of issues to existing norms. In the LGBT context, the frames proposed by activists include human rights, health (specifically HIV-AIDS), and women and gender.
International institutions assure that similar issues will be politicized in multiple countries. In order to meaningfully affect domestic populations, the policy needs to translate to the local level through norm diffusion. The mechanisms of diffusion include material inducement (e.g., conditions for membership), learning, and acculturation and socialization.
