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. UMass Law Professor Jeremiah Ho weighs in on the signal this sends both abroad and in the U.S., the impact Mr. Berry could have, and the legal precedent of equating LGBT rights as human rights.
What kind of signal do you think this sends abroad?
JH: 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.
What kind of substantive impact could this envoy appointment have?
JH: 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.
What legal precedent exists in the U.S. or internationally, that equates LGBT rights as human rights?
JH: 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 connection between LGBT rights and human rights plays out internationally, for instance, with the severe mistreatment of LGBT individuals in countries that have laws criminalizing homosexuality, with proof of one's homosexuality often satisfied by evidence of same-sex sexual conduct. In a general sense, laws that penalize homosexuality are really targeting individuals for having the sexual orientation that they embody. Countries that continue to do so are also continuing to violate the personal and human dignities of LGBT individuals, who might often have to hide their identities or face shame, criminalization, punishment, or death—all for something that is part of their identities and should be considered a fundamental part of human experience.
Will this have any impact on marriage equality issues still prevalent in the United States?
JH: The appointment of the envoy likely won't have a direct impact on the merits of the marriage cases or any other progress in that area—whether directly influencing federal district courts or the appeal pending before the Supreme Court this term. But again this move is in line with the administration's overall stance on LGBT rights and so the act of installing an envoy has persuasive value and reflects the upswing of pro-LGBT visibility that is being witnessed by all of us currently.
Additionally, it 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. So perhaps by analogy, having an envoy who deals with human rights violations of LGBT individuals abroad will remind us that after marriage equality becomes legally entrenched in this country, there are still other pending issues beyond marriage equality that surround sexual orientation and warrant positive resolutions—for instance, federal antidiscrimination laws that currently do not include sexual orientation as a protected category against harassment and discrimination (Title VII). There will certainly be more progress to be made ahead. Mr. Berry's position and work abroad might just help remind us of what other LGBT rights concerns still persist.
About Jeremiah Ho
Professor Ho joined the faculty at UMass Law in 2012. He received his B.A. from the University of California, Los Angeles (UCLA) and his J.D. from Whittier Law School. During law school, Professor Ho was the Executive Editor of the Whittier Law Review, where he was selected as the law review's 2008 Editor of the Year.
In 2014, Professor Ho was selected as one of Lawyers of Color's 50 Law Professors Under 50. He also currently serves as a contributing faculty member of the Institute for Law Teaching and Learning and co-edits The Learning Curve (AALS Section on Academic Support Newsletter). His other academic honors include the UCLA Dean's Prize for Undergraduate Research and Writing, several UCLA Vice Provost Recognition Awards, and the Susan McGuigan Oral Advocacy Competition (1st-Round Winner).
Professor Ho is a member of the State Bar of California and the Federal District Court for the Central District of California.
Weather Permitting: Incrementalism, Animus, and the Art of Forecasting Marriage Equality After U.S. v. Windsor, 62 Clev. St. L. Rev. 1 (2014).
Comment, What's Love Got to Do with It? The Corporations Model of Marriage in the Same-Sex Marriage Debate, 28 WHITTIER L. REV. 1239 (2007).
A New Rhetorical Angle in Marriage Equality Cases, The L.A. Daily J., Feb. 23, 2012 at 8.