The case of 'queer Muslims': Sexual orientation and gender identity in international human rights law and muslim legal and social ethos

Human Rights Law Review

Volumn 11, Issue 2, 2011, Pages 237-274

  Hamzić, Vanja ^a  

^a KING'S COLLEGE LONDON   (United Kingdom)

Author keywords

Discrimination; Gender identity; Hudud; Islamic law; Liwat; Muslim; Sexual orientation; Yogyakarta principles

Indexed keywords

EID: 84555188262     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngr010     Document Type: Article

References (199)

1. This is the case in Iran, Mauritania, Saudi Arabia, Sudan, Yemen and 12 northern states of Nigeria
2. Some reports include Somalia on this list, too, despite the ongoing transition of its judicial system that renders impossible any definitive answer: see Ottosson, State-sponsored Homophobia: A World Survey of Laws Prohibiting Same Sex Activity between Consenting Adults (Brussels: International Lesbian and Gay Association, 2009) at 49
3. Gender identity-based persecution is a commonplace throughout Muslim majority states. Even in Iran, where gender reassignment operations are approved and state-sponsored, gender is severely policed into a stark binary (hetero-normative) matrix: see Bahreini, 'From Perversion to Pathology: Discourses and Practices of Gender Policing in the Islamic Republic of Iran' (2008) 5 Muslim World Journal of Human Rights 1.
4. See, for example, a study on Muslim sexual/gender diversity in the early Ottoman period: El-Rouayheb, Before Homosexuality in the Arab-Islamic World, 1500-1800 (Chicago: University of Chicago Press, 2005)
5. See, for example, Kugle, 'Sexuality, Diversity, and Ethics in the Agenda of Progressive Muslims' in Safi (ed), Progressive Muslims on Justice, Gender, and Pluralism (Oxford: Oneworld Publications, 2004) at 190-234
6. Kugle, Homosexuality in Islam: Critical Reflection on Gay, Lesbian, and Transgender Muslims (Oxford: Oneworld Publications, 2010)
7. Habib, Female Homosexuality in the Middle East: Histories and Representations (New York: Routledge, 2007)
8. Habib (ed), Islam and Homosexuality (Santa Barbara: ABC-CLIO, 2010)
9. There is no reason whatsoever to believe that the number of persons in Muslim communities who fall outside the heterosexual binary normative system due to their sexual/gender difference is less than in any other society
10. For an apt example of documented state-sponsored violence against such persons, see Human Rights Watch, In a Time of Torture: The Assault on Justice in Egypt's Crackdown on Homosexual Conduct (NewYork: Human Rights Watch, 2004)
11. While essentialists believe that sexual/gender identities are a predestined form of an 'essential nature of things', constructionists see them as socially constructed and therefore mutable
12. See, for example, Woodward (ed), Identity and Difference (London: SAGE Publications, 1997)
13. See also De Lamater and Shibley Hyde, 'Essentialism vs. Social Constructionism in the Study of Human Sexuality - The Use of Theory in Research and Scholarship on Sexuality' (1998) 35 Journal of Sex Research 10.
14. Spivak, The Post-Colonial Critic: Interviews, Strategies, Dialogues (New York: Routledge, 1990) at 68
15. Preamble, 'Yogyakarta Principles, ' available at: http://www.yogyakartaprinciples.org [last accessed 14 March 2011].
16. See, for example, Swiebel, 'Lesbian, Gay, Bisexual and Transgender Human Rights: The Search for an International Strategy' (2009) 15 Contemporary Politics 19
17. For a similarly positive conclusion on these definitions from the perspective of queer theory, see Waites, 'Critique of 'Sexual Orientation' and 'Gender Identity' in Human Rights Discourse: Global Queer Politics beyond the Yogyakarta Principles' (2009) 15 Contemporary Politics 137
18. It is, however, argued that waria must be seen neither as a simple 'traditional third gender' role for male-bodied feminine people nor as a precursor to contemporary forms of same-sex desire: see Valentine, Imagining Transgender: An Ethnography of a Category (Durham: Duke University Press, 2007) at 161
19. See also Boellstorff, The Gay Archipelago: Sexuality and Nation in Indonesia (Princeton: Princeton University Press, 2005) at 9
20. See, for example, Reddy, With Respect to Sex: Negotiating Hijra Identity in South India (Chicago: University of Chicago Press, 2005)
21. Musić, 'Queer Visions of Islam' unpublished MA thesis, New York University, JW Draper Program in Humanities & Social Thought) at 5, available at: rusmir.music.googlepages.com [last accessed 14 March 2011].
22. Miller, 'Human Rights and Sexuality: First Steps Toward Articulating a Rights Based Framework for Claims to Sexual Rights and Freedoms' (1999) 93 American Society of International Law Proceedings 288 at 302
23. GA Res 217A(III), 10 December 1948, A/810 at 71
24. 1249 UNTS 13, entered into force on 3 September 1981
25. Mexico City 1975, Copenhagen 1980, Nairobi 1985 and Beijing1995
26. See Corrêa, Petchesky and Parker, Sexuality, Health and Human Rights (London: Routledge, 2008) at 28
27. Notably the United Nations Population Fund (UNFPA), the United Nations Children's Fund (UNICEF) and the United Nations Development Programme (UNDP)
28. ARC International, UN General Assembly Joint Statement on Sexual Orientation and Gender Identity: Building on the Past, Looking to the Future (Geneva: ARC International, 2009) at 1, available at: http://www.arcusfoundation.org [last accessed 14 March 2011].
29. It stipulates that the 'human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence'
30. See Sheill, 'Losing Out in the Intersections: Lesbians, Human Rights, Law and Activism' (2009) 15 Contemporary Politics 55 at 58
31. Global Rights, Demanding Credibility and Sustaining Activism: A Guide to Sexuality-based Advocacy (Washington DC: Global Rights, 2008) at 55
32. Convention for the Protection of Human Rights and Fundamental Freedoms 1950, ETS 5, entered into force on 3 September 1953
33. See Dudgeon v United Kingdom A 45 (1981); 4 EHRR 149
34. Norris v Ireland A 142 (1988); 13 EHRR 186
35. Modinos v Cyprus A 259 (1993);16 EHRR 485
36. B v France A 232-C (1992); 16 EHRR 1
37. Toonen v Australia (488/1992), CCPR/C/50/D/488/1992 (1994); 1-3 IHHR 97 (1994)
38. 993 UNTS 3, entered into force on 23 March 1976
39. See O'Flaherty and Fisher, 'Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles' (2008) 8 Human Rights Law Review 207 at 221
40. (941/2000), CCPR/C/78/D/941/2000 (2003); 11 IHRR 146 (2004)
41. (1361/2005), CCPR/C/89/D/1361/2005 (2007); 14 IHRR 933 (2007)
42. See, for example, Human Rights Committee, Concluding Observations regarding United States of America, 3 October 1995, A/50/40; Cyprus, 6 April 1998, CCPR/C/79/Add 88; Ecuador, 18 August 1998, CCPR/C/79/Add 92; Austria, 19 November 1998, CCPR/C/79/Add 103; Chile, 30 March 1999, CCPR/C/79/Add 104; Lesotho, 8 April 1999, CCPR/C/79/Add 106; Romania, 28 July 1999, CCPR/C/79/Add 111; Australia, 24 July 2000, A/55/40; Trinidad and Tobago, 3 November 2000, CCPR/CO/70/TTO; Egypt, 28 November 2002, CCPR/CO/76/EGY; El Salvador, 22 July 2003, CCPR/CO/78/SLV; Philippines, 1 December 2003, CCPR/CO/79/PHL; Namibia, 30 July 2004, CCPR/CO/81/NAM; Poland, 2 December 2004, CCPR/CO/82/POL; Kenya, 28 March 2005, CCPR/CO/83/KEN; United States of America, 15 September 2006, CCPR/C/USA/CO/3; Barbados, 11 May 2007, CCPR/C/BRB/CO/3; and Chile, 18 May 2007, CCPR/C/CHL/CO/5
43. CERD's silence is inexplicable, in particular since the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance warned against 'double discrimination' experienced by members of both racial and sexual minority groups: see his Report to the UN Commission on Human Rights on his Mission to Brazil, 28 February 2006, E/CN.4/2006/16/Add. 3 at para 40.
44. 993 UNTS 3, entered into force on 3 January 1976
45. CESCR, General Comment No 20: Non-discrimination in economic, social and cultural rights (para 32), 2 July 2009, E/C12/GC/20 (2009); 16 IHRR 925 (2009) at para 32
46. See, for example, Pillay, 'Message of the United Nations High Commissioner for Human Rights' Statement on Human Rights, Sexual Orientation and Gender Identity delivered before the UN General Assembly, 18 December 2008, signed by 66 (+1) member states of the UN
47. See text of speech in Otoson, State Sponsored Homophobia (The International Lesbian, Gay, Bisexual, and Trans and Intersex Association, May 2009) at 9
48. See http://www.oic-oci.org [last accessed 14 March 2011].
49. See Commission on Human Rights, Report on the 59th session, 17 March-24 April 2003, E/CN4/2003/135 at paras 575-85
50. See Girard, 'Negotiating Sexual Rights and Sexual Orientation at the UN', in Parker, Petchesky and Sember (eds), Sex Politics: Reports from the Front lines (Rio de Janeiro: Sexuality Policy Watch, 2007), available at: http://www.sxpolitics.org [last accessed 14 March 2011].
51. Commission on Human Rights, 61st session, Statement made by Ambassador Tim Caughley, New Zealand Representative, on behalf of several countries under Agenda Item 17: Promotion and Protection of Human Rights, 15 April 2005, available at: http://www.mfat.govt.nz/Media-and-publications/Media/MFAT-speeches/2005/0-15-April-2005a.php [last accessed 15 April 2011].
52. Norwegian Joint Statement on Human Rights violations based on sexual orientation and gender identity, Human Rights Council, 1 December 2006, available at: http://www.norway-geneva.org/unitednations/humanrights/hrc011206/ [last accessed 14 March 2011].
53. Interestingly, Albania is an OIC member state as of 1992, while Bosnia and Herzegovina enjoys the observer status since 1994: see http://www.oic-oci.org [last accessed 14 March 2011].
54. Statement on Human Rights, Sexual Orientation and Gender Identity, on behalf of 66 States, under Agenda Item 64(b), UN General Assembly, 63rd session, NewYork, 18 December 2008, A/63/635
55. On 21 March 2011, while this article was being prepared for press, a new Joint Statement on Sexual Orientation and Gender Identity was presented at the 16th session of the Human Rights Council by Colombia, on behalf of as many as 85 states: see, for example, International Service for Human Rights, 'Ground-Breaking Statement on Sexual Orientation and Gender Identity by Record Number of 85 States', 24 March 2011, available at: http://www.ishr.ch/council/1033-ground-breaking-statement-on-sexual-orientation-andgender-identity-by-record-number-of-85-states [last accessed 6 April 2011].
56. For the latest updates, see: http://www.geneva.usmission.gov/tag/hrc16-lgbt/ [last accessed 15 April 2011].
57. Three OIC member states: Albania (since 1992), Gabon (since 1974) and Guinea-Bissau (since 1974); three OIC observer states: Bosnia and Herzegovina (since 1994), Central African Republic (since 1997) and Serbia (since 2009)
58. Response read by Syria to Statement on Human Rights and the so-called notions of 'Sexual Orientation' and 'Gender Identity', UN General Assembly, 18 December 2008, available in audio-visual form at: http://www.un.org/webcast/ga2008.html [last accessed 14 March 2011)] (transcript on file with author).
59. Beside the 45 OIC member states, the other 12 signatory states are: the Democratic People's Republic of Korea, Eritrea, Ethiopia, Fiji, Kenya, Malawi, Rwanda, St Lucia, the Solomon Islands, Swaziland, the United Republic of Tanzania and Zimbabwe
60. A similar action was recently orchestrated before the Third Committee of the UN General Assembly to remove a reference to sexual orientation from an annual resolution on extrajudicial, summary or arbitrary executions. Over the past 10 years, the resolution has consistently included sexual orientation in the list of discriminatory grounds on which killings are often based. The amendment removing the reference to sexual orientation was sponsored by Benin, on behalf of the African Group in the UN General Assembly. It was narrowly passed especially due to lobbying by the OIC key member states. This caused an international outcry which, in December 2010, compelled the UN General Assembly to vote overwhelmingly in favour of restoring the reference to sexual orientation in this important resolution.
61. For relevant press releases, see ARC International website at: http://www.arc-international.net/press-releases/eje-vote-nov-2010.htm [last accessed 14 March 2011].
62. http://www.arcinternational.net/press-releases/eje-pressrelease-dec2010.pdf [last accessed 14 March 2011].
63. See also Resolution on Human Rights, Sexual Orientation and Gender Identity, General Assembly of the Organisation of American States, 4 June 2009, GA Res 2504 (XXXIX-O/09). The Resolution simultaneously approved an earlier resolution, GA Res 2435 (XXXVIII-O/08), also entitled 'Human Rights, Sexual Orientation and Gender Identity'.
64. For the latest draft of the Resolution and the related materials of the working group set up by the Permanent Council of the Organisation of the American States, see http://www.oas.org/consejo/cajp/RACISM.asp [last accessed 14 March 14 2011].
65. For example, in Case No 11.656, Marta Lucía Álvarez Giraldo v Colombia Report No 71/99 (1999) at para 21, the Inter-American Commission on Human Rights declared the application admissible because denying an inmate of a women's prison the right to intimate visits by her same-sex partner 'could constitute an arbitrary or abusive interference with her private life'. The case, however, did not progress since the state party adopted a satisfactory remedy. See also International Commission of Jurists, Sexual Orientation, Gender Identity and International Human Rights Law: Practitioners Guide No 4 (Geneva: ICJ, 2009) at 38-9.
66. 1999-VI; 29 EHRR 493
67. 29 EHRR 548
68. 1999-IX; 31 EHRR 1055
69. 2003-I; 36 EHRR 55
70. 2003-I; 37 EHRR 39
71. 2003-IX; 38 EHRR 24
72. Application No 43546/02, Judgment, 22 January 2008
73. See Schalk and Kopf v Austria Application No 30141/04, Judgment, 24 June 2010 at para 90
74. For a discussion of Schalk and Kopf, see Hodson, 'A Marriage by Any Other Name? Schalk and Kopf v Austria' (2011) 11Human Rights Law Review 170
75. Whittle, Respect and Equality: Transsexual and Transgender Rights (London: Cavendish Publishing, 2002) at 153
76. 2003-VII; 37 EHRR 51 at 69
77. Application No 27527/03, Judgment, 11 September 2007 at para 59
78. Application No 1543/06, Judgment, 3 May 2007 at para 100. Ban of an LGBTI equality march by the Mayor of Warsaw was found to be in breach of Article 11, Article 13 in conjunction with Article 11 and Article 14 in conjunction with Article 11 of the European Convention.
79. Applications Nos 4916/07, 25924/08 and 14599/09, Judgment, 21 October 2010
80. For example, on 29 July 2009, the Council of Europe's Commissioner for Human Rights, Mr Thomas Hammarberg, published an Expert Issue Paper on 'Human Rights and Gender Identity', calling for greater attention to the rights and issues pertinent to gender identity, see https://wcd.coe.int/wcd/ViewDoc.jsp?id=1476365 [last accessed 14 March 2011].
81. For instance, Article 21 of the Charter of Fundamental Rights of the European Union explicitly prohibits discrimination, inter alia, on the basis of sexual orientation. The Charter was 'solemnly proclaimed' on 7 December 2000 and adopted on 12 December 2007.
82. See Address of the Rapporteur at the launch event of the Yogyakarta Principles, Geneva, 26 March 2007
83. See, for example, Committee on Economic, Social and Cultural Rights, General Comment No 20: Non-discrimination in economic, social and cultural rights (art. 2, para. 2), 2 July 2009, E/C12/GC/20; 16 IHRR 925 (2009) at para 32.
84. Office of the UN High Commissioner for Refugees (UNHCR), Handbook for the Protection of Women and Girls (Geneva: UNHCR, 2008) at 72
85. See Article 18 UDHR; Article 5(d)(vii) International Convention on the Elimination of All Forms of Racial Discrimination 1966, 660 UNTS 195, entered into force on 4 January 1969
86. Article 14 Convention on the Rights of the Child 1989, 1577 UNTS 3, entered into force on 2 September 1990; Article 9 European Convention; Article 12 American Convention on Human Rights 1969, 1144 UNTS 123, entered into force on 18 July 1978; and Article 8 African [Banjul] Charter on Human and Peoples' Rights 1981 OAU Doc CAB/LEG/67/3 rev 5, (1982) 21 ILM 58, entered into force on 21 October 1986
87. O'Flaherty and Williams, Jurisprudential Annotations to the Yogyakarta Principles (Nottingham: University of Nottingham Human Rights Law Centre, 2007) at 52, available at: http://www.yogyakartaprinciples.org [last accessed 14 March 2011].
88. HRC, General Comment No 22: The right to freedom of thought, conscience and religion (art 18), 30 July 1993, CCPR/C/21/Rev1/Add4 (1994); 1(2) IHRR 30 (1994)
89. As An-Na'im aptly puts it: '[I]f I, as a Muslim, am faced with a stark choice between Islam and human rights, I will certainly opt for Islam.'
90. See An-Na'im, Islam and the Secular State: Negotiating the Future of Shari'a (Cambridge: Harvard University Press, 2008) at 111
91. For the 'classical' scholarship (which we shall call scripturalist in this study) on Islamic legal tradition in English language, see Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964)
92. Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964)
93. See Shalakany, 'Islamic Legal Histories' (2008) 1 Berkeley Journal of Middle Eastern & Islamic Law 3
94. This term, in the meaning of 'the right way' (shari'atan), is pronounced only once in the Qur'an in a verse that has been historically revealed many years before the so-called Madinan period of revelation of the Book, in which most of the legal provisions of the Qur'an have been set out. It is, therefore, unthinkable that it has meant only 'divine law', at least for the first generations of Muslims.
95. See Kamali, Shari'ah Law: An Introduction (Oxford: Oneworld Publications, 2008) at 2
96. On the origins and historical development of ijtihad, see Hamzić, 'Ijtihad - Before and Beyond: An Overview of Historic and Contemporary Forms of Ijtihad', presented at the Third Inner Circle Annual Retreat, Cape Town, Republic of South Africa, June 2006 (on file with author)
97. See generally Geertz, Islam Observed: Religious Development in Morocco and Indonesia (Chicago: University of Chicago Press, 1971)
98. Ramadan, 'The Way (Al-Sharia) of Islam', in Kamrava (ed), The New Voices of Islam: Reforming Politics and Modernity - A Reader (London: I.B. Tauris, 2006) at 69.
99. Abiad, Sharia, Muslim States and International Human Rights Treaty Obligations: A Comparative Study (London: British Institute of International and Comparative Law, 2008)
100. See, for example, Murray, 'The Will Not to Know: Islamic Accommodations of Male Homosexuality' in Murray and Roscoe, Islamic Homosexualities: Culture, History, and Literature (New York: New York University Press, 1997) at 28-32
101. Abu Khalil, 'A Note on the Study of Homosexuality in the Arab/Islamic Civilization' (1993) 32 Arab Studies Journal 48
102. Dunne, 'Homosexuality in the Middle East: An Agenda for Historical Research' (1990) 12 Arab Studies Quarterly 55
103. El-Rouayheb, 'The Love of Boys in Arabic Poetry of the Early Ottoman Period, 1500-1800' (2005) 8 Middle Eastern Literatures 3
104. Bencheikh, 'Poésie bachiques d'Abu Nuwas, the'mes et personnages' (1963-1964) 18 Bulletin d'Études Orientales 1
105. See, for example, Rowson, 'The Effeminates of Early Medina' (1991) 111 Journal of theAmerican Oriental Society 671
106. The four main-line Sunni schools of fiqh are Hanafi, Maliki, Shafi'i and Hanbali madhhab. Smaller and isolated communities following other, almost extinct schools, however, still can be found (for example the followers of Ibadi madhhab are still predominant in Oman).
107. Abou El Fadl, The Great Theft: Wrestling Islam from the Extremists (New York: Harper Collins, 2007) 147-9
108. For a simplistic interpretation of the above, see Doi, Shariah the Islamic Law (London: Ta-Ha, 1997) at 218-28
109. There is, however, a disagreement on whether intoxication is a hadd offence, hence some authors choose not to add it to the list
110. Gartner, 'Articulating Lesbian Human Rights:The Creation of a Convention on the Elimination of All Forms of Discrimination against Lesbians' (2005) 14 UCLA Women's Law Journal 61 at 71
111. 'It might or might not be the subject of Surah [chapter] 4, verse 15, which orders that, with the incriminating testimony of four witnesses, "those (fem. pl.) among your women who approach lewdness (al-fahisha)" are to be "confine[d] to houses until death claims them, or God ordains for them some (other) way".'
112. See Ali, Sexual Ethics & Islam: Feminist Reflections on Qur'an, Hadith, and Jurisprudence (Oxford: Oneworld Publications, 2008) at 81
113. Wadud, Inside the Gender Jihad: Women's Reform in Islam (Oxford: Oneworld Publications, 2007) at 238
114. For a discussion on the origins of the term liwat, see Jamal, 'The Story of Lot and the Qur'an's Perception of the Morality of Same-Sex Sexuality' (2001) 41 Journal of Homosexuality 1 at 9
115. Quoting 'A al-Qari' al-Harawi (d 1614 CE), in Tamin and Tamin (eds), Fath bab al-'inayah bi-sharh an-Niqayah, Vol 3 (Beirut 1997) at 195 (emphasis added)
116. There are numerous canonical ahadith commanding satr, such as: 'He who keeps concealed something that would dishonour a Muslim will receive the same consideration from God'
117. See Cook, Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge: Cambridge University Press 2001) at 43-4
118. Khaled El-Rouayheb cites the works of the scholars from the early Ottoman period, such as Ibn Nujaym, Ibn 'Abidin, Zurqani, Ramli and Ibn 'Allan, in support for this claim
119. Apparently, only the hadd for apostasy survived this reform
120. Paradoxically, it is true that, '[i]n Egypt, as in many countries, the law allows same-sex relations between consenting adults, but in practice homosexual and transgender persons are persecuted and prosecuted on the basis of laws that criminalize promiscuity, prostitution, and immorality'
121. Arkoun, 'Present-Day Islam between Its Tradition and Globalization', in Kamrava (ed), The New Voices of Islam: Reforming Politics and Modernity - A Reader (London: I.B. Tauris, 2006) at 50.
122. The term 'westoxication' (in Farsi: gharbzadegi), popular among the clerical elites of the present day Iran, was coined by Ahmad Fardid, an Iranian intellectual: see, for example, Hanson, 'The "Westoxication" of Iran: Depictions and Reactions of Behrangi, al-e Ahmad, and Shariati' (1983) 15 International Journal of Middle East Studies 1
123. For the seminal work on Orientalism, which is a European ideological creation devised by global northern writers, philosophers and colonial administrators to deal with the perceived 'otherness' of global southern cultures, beliefs and customs, see Said, Orientalism (London: Penguin Books, 2003)
124. A poignant example of this disconcerting trend is the revival of zina (adultery/fornication) laws in certain Muslim-majority states, based on patriarchal interpretations of classical fiqh (jurisprudence) and gender-unjust European colonial legislation
125. The primary reasons of the (re)enactment of these laws are political: see Hamzić and Mir-Hosseini, Control and Sexuality: The Revival of Zina Laws in Muslim Contexts (London: Women Living Under Muslim Laws, 2010)
126. That is, as espoused by Imam Shafi'i (d 820 CE) and other founding jurists of fiqh (Islamic jurisprudence)
127. See An-Na'im, Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law (Syracuse: Syracuse University Press, 1996) at 150
128. 'The notion of an Islamic state is in fact a postcolonial innovation based on a European model of the state and a totalitarian view of law and public policy as instruments of social engineering by the ruling elites. Although the states that historically ruled over Muslims did seek Islamic legitimacy in a variety of ways, they were not claimed to be "Islamic states".'
129. Morgan, 'Queering International Human Rights Law', in Stychin and Herman (eds), Law and Sexuality: The Global Arena (Minneapolis: University of Minnesota Press, 2001) 223
130. For yet another example of the pre-colonial state of a Muslim community that challenges the dominant contemporary view of Islamic legal tradition, see Semerdjian, Off the Straight Path: Illicit Sex, Law, and Community in Ottoman Aleppo (Syracuse: Syracuse University Press, 2008)
131. Michel Foucault has famously described the European socio-psychiatric construction of 'homosexual' as follows: 'The nineteenth-century homosexual became a personage, a past, a case history, and a childhood, in addition of being a type of life, a life form... the homosexual was now a species.'
132. See Foucault, The History of Sexuality, Volume 1 (London: Penguin Books, 1978) at 43 (emphasis added)
133. Judith Butler has argued that 'the naturalistic effects of heterosexualized genders are produced through imitative strategies; what they imitate is a phantasmatic ideal of heterosexual identity, one that is produced by the imitation as its effect.'
134. See Butler, 'Imitation and Gender Insubordination', in Fuss (ed), Inside/Out: Lesbian Theories, Gay Theories (NewYork: Routledge, 1991) 21 (emphasis added)
135. In 1998, the Islamic Research Academy (Majma' al-buhuth al-Islamiyya) of the prestigious al-Azhar University has banned the book Mujtama' Yathrib (The Society of Yathrib) in which an Egyptian historian presents his research on the social mores of the Madinan society, which reveals that early Muslims have enjoyed the pleasures of the flesh and worldly matters. This was found seriously blasphemous.
136. See Ismail, 'The Politics of Historical Revisionism: New Re-Readings of the Early Islamic Period', in Browers and Kurzman, An Islamic Reformation? (Oxford: Lexington Books, 2004) at 101-10 and 116-8
137. l-Karim, Mujtama' Yathrib (The Society of Yathrib) (Cairo: Dar Sina, 1996)
138. Gender transitions and same-sex sexual acts are currently officially illegal in 27 Muslim-majority countries. Five of these self-proclaimed 'Islamic' countries, unlike any other state in the world, maintain the death penalty for liwat.
139. Baderin, International Human Rights and Islamic Law (Oxford: Oxford University Press, 2005) at 117
140. Apart from homosexuality, Baderin also describes definition of family, blasphemy and abortion as 'moral questions' warranting the margin of appreciation
141. Nisrine Abiad argues that 'the tension between Islam and human rights is derived from a State's illegitimate interference with individual freedoms, which is then justified through Islam and a misguided application of Sharia Law'
142. See also Najmabadi, 'Mapping Transformations of Sex, Gender and Sexuality in Modern Iran' (2005) 49 Social Analysis 54
143. In March 2009, Ebru Soykan, a prominent transgender human rights defender, was killed in Turkey. Human Rights Watch, 'Turkey: Transgender Activist Murdered', Human Rights Watch News Release, 12 March 2009, available at: http://www.hrw.org/en/news/2009/03/12/turkeytransgender-activist-murdered [last accessed 14 March 2011].
144. In April 2009, at least 63 persons were tortured and seven killed because of their perceived sexual orientation in Iraq
145. See Neyuf and Al-Iraqi, 'Bodies of 7 Gays in Baghdad Morgue', Al-Arabiya (UAE), 20 April 2009, available in Arabic at: http://www.alarabiya.net/save_print.php?print=1&cont_id=71071 [last accessed 14 March 2011].
146. For a detailed report on these events, see Human Rights Watch, 'They Want Us Exterminated': Murder, Torture, Sexual Orientation and Gender in Iraq (NewYork: Human Rights Watch, 2009)
147. In June 2009, 67 men were arrested in Riyadh, Saudi Arabia for wearing 'women's clothing': See Human Rights Watch, 'Saudi Arabia: Drop 'Cross-Dressing' Charges', HRW News Release, 24 June 2009, available at: http://www.hrw.org/en/news/2009/06/24/saudi-arabia-dropcross-dressing-charges [last accessed 14 March 2011].
148. See Helsinki Citizens' Assembly Turkey & Organisation for Refuge, Asylum & Migration, Unsafe Haven: The Security Challenges Facing Lesbian, Gay, Bisexual and Transgender Asylum Seekers and Refugees in Turkey (HCA & ORAM, 2009)
149. Rehman, 'The Sharia, Islamic Family Laws and International Human Rights Law: Examining the Theory and Practice of Polygamy and Talaq' (2007) 21 International Journal of Law, Policy and the Family 108 at 116
150. Baderin, 'A Macroscopic Analysis of the Practice of Muslim State Parties to International Human Rights Treaties: Conflict or Congruence?' (2001) 1 Human Rights Law Review 265 at 274
151. It remains to be seen, however, to what extent this policy will be continued by the postrevolutionary Tunisian state
152. See http://www.pakistani.org/pakistan/legislation/2006/wpb.html [last accessed 14 March 2011].
153. The situation in Pakistan, however, could dramatically change, given the recent judgment of its Federal Shariat Court, which challenges the legality of the 2006 Protection of Women (Criminal Laws) Act
154. For an alarming account of this development by the country's leading women's rights organisation, see 'Shirkat Gah's Preliminary Analysis on Federal Shariat Court Verdict', Shirkat Gah, 29 December 2010, available at: http://www.shirkatgah.org/news.php?id=247 [last accessed 6 April 2011].
155. See unofficial English translation at: http://www.globalrights.org/site/DocServer/Mouvawana-English_Translation.pdf [last accessed 14 March 2011].
156. King Muhammad VI (of Morocco), Address to Members of the Moroccan Parliament, 10 October 2003, Maghreb Arab Presse, available at: http://www.map.co.ma [last accessed 14 March 2011].
157. See, for example, Al-Qurthuby, Kholidul et al. (eds), 'Indahnya Kawin Sesama Jenis' ('The Beauty of Same-sex Marriage') (2004) 25 Justisia 1.
158. Mulia, 'Promoting LGBT Rights through Islamic Humanism', presented at the International Training: LGBT and Human Rights, 1-6 June 2008, Bali, Indonesia (on file with author)
159. Mulia, 'Understanding Sexuality in Islam: Promoting the Appreciation of Human Dignity', presented at the Workshop on the Role of National Human Rights Institutions in the Promotion and Implementation of the Yogyakarta Principles, Asia Pacific Forum of National Human Rights Institutions, 5-7 May 2009, Yogyakarta, Indonesia (on file with author)
160. This salient term was popularised by the anti-racist feminist activist Zillah Eisenstein: see Eisenstein, Against Empire: Feminisms, Racism and the West (London: Zed Books, 2004)
161. A tantamount term - 'pluriversality' - was coined by the de-colonial semioticianWalter Mignolo: see Santos (ed), Cognitive Justice in a Global World: Prudent Knowledges for a Decent Life (Lanham: Lexington Books, 2007)
162. See, for example, Bereket and Adam, 'Navigating Islam and Same-Sex Liaisons among Men in Turkey' (2008) 55 Journal of Homosexuality 204
163. Boellstorff, 'Between Religion and Desire: Being Muslim and Gay in Indonesia' (2005) 107 American Anthropologist 575
164. That is, persons and groups outside the hegemonic power structure whose self-identification is largely inconceivable because of oppression they are bound to endure: see, for example, Spivak, 'Can the Subaltern Speak?', in Nelson and Grossberg (eds), Marxism and the Interpretation of Culture (Urbana: University of Illinois Press, 1988) at 271-313
165. Haqq, 'Homosexuality and Islam in America: A Brief Overview' (2000) 5 Journal of Islamic Law and Culture 87
166. See, for example, Katyal, 'Exporting Identity' (2002) 14 Yale Journal of Law and Feminism 97
167. See, for example, Long, 'Unbearable Witness: How Western Activists (Mis)Recognize Sexuality in Iran' (2009) 15 Contemporary Politics 119 at 130
168. See Massad, Desiring Arabs (Chicago: University of Chicago Press, 2007)
169. This book, however, must be criticised for employing a set of strict binaries in its description of global northern gay Orientalism which ultimately denounces those queer Arabs (and, mutatis mutandis, Muslims) who do wish to identify as LGBTs
170. For a similar critique of Massad's approach, see Shalakany, 'On a Certain Queer Discomfort with Orientalism' (2007) 101 American Society of International Law Proceedings 125
171. See Wilcox, 'Outlaws or In-Laws? Queer Theory, LGBT Studies, and Religious Studies' (2006) 52 Journal of Homosexuality 73 at 73
172. For the concept of 'fundamental unintelligibility', which means 'that the laws of culture and of language find you to be an impossibility', see Butler, Undoing Gender (London: Routledge, 2004) at 30
173. For a detailed exploration of these strategies, see Yoshino, 'Covering' (2002) 111 Yale Law Journal 769
174. This is a common strategy of all sexual orientation based groups. For an account on Saudi Arabia, see Whitaker, Unspeakable Love: Gay and Lesbian Life in the Middle East (London: Saqi Books, 2006) 53-7.
175. Teh, 'Mak Nyahs (Male Transsexuals) in Malaysia: The Influence of Culture and Religion on Their Identity' (2001) 5 International Journal of Transgenderism, online edition, available at: http://www.susans.org/forums/index.php?topic=27885.0 [last accessed 15 April 2011].
176. For an exemplary story on a waria (an Indonesian form of male-to-female trans identity) who has set up a Qur'anic school for warias and other 'queer Muslims' nearby Yogyakarta, see Susanto, 'Indonésie: l'école coranique des travestis', Courrier International, 7 October 2008
177. Asia Pacific Forum of National Human Rights Institutions, Workshop on the Role of National Human Rights Institutions in the Promotion and Implementation of the Yogyakarta Principles, Asia Pacific Forum of National Human Rights Institutions, 5-7 May 2009, Yogyakarta, Indonesia, at Conclusion No 10 (on file with author)
178. For example, such an open dialogue was successfully organised in Jakarta, in February/March 2007, by the Initiative for the Advocacy of Gender, Sexuality and Human Rights in Muslim Communities (with its representatives from Bosnia and Herzegovina, the Republic of South Africa, Malaysia, Pakistan and the United States of America) and the Fatayat NU (with its representatives from Indonesia). The participants included Indonesian civil society, academia and judicial representatives (relevant documentation on file with author).
179. See Moumneh, 'A Keynote Speech', International Conference on LGBT Human Rights, World Outgames 2009, Copenhagen, 28 July 2009
180. Cited in Moumneh, 'Global LGBT Movement Not Inclusive of Other Rights Issues', Menassat, 10 August 2009, available at: http://www.menassat.com [last accessed 14 March 2011].
181. Those groups include The Inner Circle (see http://www.theinnercircle.org.za [last accessed 14 March 2011]) in South Africa.
182. Imaan (see http://www.imaan.org.uk [last accessed 14 March 2011]).
183. The Safra Project (see http://www.safraproject.org [last accessed14 March 2011]) in the United Kingdom.
184. Salaam (see http://www.salaamcanada.com [last accessed 14 March 2011]) in Canada.
185. Al-Fatiha (see http://www.al-fatiha.org [last 14 March accessed 2011]) in the United States of America.
186. See also the website: http://www.irshadmanji.com [last accessed 14 March 2011].
187. Book by the Canadian queer Muslim activist Irshad Manji: Manji, The Trouble with Islam Today: A Muslim's Call for Reform in Her Faith (NewYork: St. Martin's Press, 2005).
188. See, for example, Yip, 'Negotiating Space with Family and Kin in Identity Construction: The Narratives of British Non-Heterosexual Muslims' (2004) 52 Sociological Review 336
189. Yip, 'Embracing Allah and Sexuality? South Asian Non-Heterosexual Muslims in Britain', in Kumar and Jacobsen (eds), South Asians in the Diaspora: Histories and Religious Traditions (Leiden: Brill, 2004)
190. Yip, 'The Quest for Intimate/Sexual Citizenship: Lived Experiences of Lesbian and Bisexual MuslimWomen' (2008) 2 Contemporary Islam 99
191. The 2009 Gallup/Coexist global survey on Muslim inter-faith relations has revealed that 0% of the interviewed British Muslims thought that homosexuality was morally acceptable: see Green, 'Patriotic, Respectful and Homophobic: A Portrait of British Muslims' State of Mind', The Independent (United Kingdom), 8 May 2009, available at: http://www.independent.co.uk [last accessed 14 March 2011].
192. 'Pan-Islamism' refers to the ideology of unification and integration of all Muslim peoples, regardless of their social, cultural and political differences: see Sheikh, The New Politics of Islam: Pan-Islamic Foreign Policy in a World of States (London: Routledge Curzon, 2003) at 16
193. The failure to create an 'Islamic' Court of Justice in 1981 may serve as a good illustration
194. For a comprehensive critique of Islamic human rights schemes, see generally Mayer, Islam and Human Rights: Tradition and Politics, 3rd edn (Boulder: Westview Press, 1999)
195. Organisation of the Islamic Conference, 'OIC to Set Up an Independent Permanent Human Rights Commission' (January-April 2009) 10 OIC Journal 19
196. Such as Yakin Ertürk (Turkey), UN Special Rapporteur on Violence against Women; Asma Jahangir (Pakistan), Chairperson of Human Rights Commission of Pakistan; and Rudi Muhammed Rizki (Indonesia), UN Special Rapporteur on UN Solidarity
197. On 2 July 2009, the Court ruled that the infamous Section 377 of the Indian Penal Code, which criminalised 'sodomy' (described as 'unnatural offence'), violates the fundamental rights as given in Articles 14, 15 and 21 of the Constitution of India in so much as it criminalises private sexual acts between consenting adults. See Naz Foundation v Government of NCT of Delhi and Others WP(C) No 7455/2001, High Court of Delhi, Judgment, 2 July 2009, citing theYogyakarta Principles at paras 43 and 44.
198. Some Muslim scholars have already proposed that the story of Lot, as repeatedly conveyed in the Qur'an, does not condemn 'homosexuality', as traditionally understood
199. Who similarly try to 'wrestle Islam from the extremists'