Thursday, February 26, 2015
By Jeremiah Ho
This week the U.S. State Department announced the appointment of Randy Berry as the first-ever Special Envoy for the Human Rights of LGBT Persons to advocate globally for the human rights of lesbian, gay, bisexual and transgender people. The creation of this position has broader implications than merely the symbolic. On the one hand, it does align with the Obama administration's historically progressive stance on the rights of LGBT individuals. From Attorney General Eric Holder's 2011 letter to Senator John Boehner that suggested judicially protecting sexual orientation at the same levels as we protect race and gender to the repeal of Don't Ask Don't Tell, this administration has been part of a vast transformation toward recognizing LGBT rights. This is in comparison to more than 60 years ago when President Eisenhower signed an executive order discharging LGBT individuals from working in the federal government.
On the other hand, it is also a step that moves beyond recognizing issues regarding LGBT individuals domestically, and takes the advocacy of the rights of LGBT individuals into foreign policymaking, where serious human rights violations of LGBT peoples are a concern because they still exist in various countries. Having a special envoy would centralize efforts to dialogue with and push countries where homosexuality and consensual same-sex intimacy are not only illegal but the accompanying punishments are very severe (e.g., imprisonment and/or death)--even those countries who are already on good terms with the U.S. It reaffirms the signal that the Obama administration is interested in protecting and preserving the dignity of LGBT people but now broadens that goal by directing protection beyond our borders. And it certainly puts into effect the Obama administration's original intentions of incorporating LGBT rights into U.S. foreign policy.
It's intriguing to note that Secretary Kerry made it pretty clear that his criteria for filling this appointment were, amongst other requirements, that the person would be a career Foreign Service officer from within the State Department and also a diplomat by training. To me, it seems that there would likely be more sophisticated work that the State Department intends to give to the envoy than had the envoy been someone that would have served a more symbolic function by nature. It will be interesting to see how Randy Berry, who is the envoy and who has diplomat experience, works to pressure countries that act indignantly and even violently against their LGBT citizens. He might be able to better influence the State Department in its foreign aid decisions, and play a part in pressuring countries from enacting anti-gay legislation. There are also trade implications as well, as the envoy could work with various U.S. government agencies and American companies doing business abroad to see how American economic and development programs could better service the needs of marginalized LGBT individuals internationally. And lastly, it would also be very interesting to see how the envoy could in turn represent the U.S. in support of foreign leaders and governments that are progressive about its LGBT citizens.
One of the basic focuses of human rights law is with the concept of preserving and furthering human dignity because this idea goes to the root of modern concepts of human identity and experience. Dignity is a reflection on one's right to be a free citizen in society, to be able to express oneself freely, and have ideas that are unencumbered by unnecessarily oppressive forces. Such rights should also be distributed equally to all members of society. When a government interferes with that freedom toward a particular group for no such reason other than bias, then there could be a violation of human dignity. An example of this result in the LGBT experience is when state laws in the U.S. before 2003 used to criminalize same-sex consensual sex acts--essentially with the effect of branding sexual minorities as criminals if they engaged in same-sex consensual sex. In 2003, the Supreme Court in Lawrence v. Texas eventually found such laws unconstitutional. If you read Justice Kennedy's majority opinion in Lawrence, he connected the idea that laws that interfered with individual privacy between consenting same-sex partners in this way violated their human dignity, and he referenced international case law that found human rights violations in identical circumstances to draw the line between the issues of Lawrence v. Texas with human rights concerns. We saw this connection between LGBT rights and human rights again in U.S. v. Windsor when DOMA was found to demean or stigmatize the relationships of same-sex couples over opposite-sex couples. We'll likely see this connection between LGBT rights and human rights furthered this summer when the next same-sex marriage case at the Supreme Court (DeBoer v. Snyder) is determined.
The appointment reminds us that there are issues beyond marriage equality that affect LGBT individuals, and that their rights and dignity are still left unprotected in disproportionate ways compared to the protections of other groups in this country.