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Last week a court in Uganda issued a decision permanently enjoining a daily Kampala newspaper from printing the names and addresses of persons alleged to be gay or lesbian, and awarded damages to those whose identities the paper had already been published.  On the front page of the paper, above the pictures of the supposed gay Ugandans, the paper printed “Hang Them – They Are After Our Kids.” The story then claims that “most secondary schools and tertiary institutions have been penetrated by gay activists to recruit kids.”  More on the facts of the case here.

The plaintiffs claimed that the story exposed them to possible “violence, ridicule, hatred and mob injustice” in violation of right to dignity, a right to life, and right to privacy all secured by the Ugandan Constitution.  In the decision, which is here, Judge V.F. Musoke Kibuuka agreed that the newspaper had violated the plaintiffs’ rights to life, dignity and privacy, but did so by emphatically insisting that the case was “not about homosexuality.”  Instead the Judge took pains to note that the rights abridged were ones of a general nature: life, dignity and privacy, not gay or homosexual rights.  He noted that homosexuality remains a crime under Ugandan law, but that the law criminalized homosexual acts, not homosexual identity: “The scope of section 145 is narrower than gayism (sic) generally.  One has to commit an act prohibited under section 145 in order to be regarded a criminal.”

Tragically, the opinion undermines the privacy and dignity rights of the plaintiffs in the name of protecting them. The court starts off the opinion by quoting the very privacy-invading, violence-inducing and dignity-denying article that it then goes on to decry – thus further publicizing to a larger international audience the names, addresses and threats contained in the original publication.  A summary of the article would have been more appropriate.

So here’s the bind in a case like this: it makes sense that the judge resists framing the case as a gay rights case when there remain strong social and legal condemnation of homosexuality in Uganda (fueled by media like the one at issue in the case).  Finding a violation of a right, but not specifying the nature of the right as one related to homosexuality, risks condoning, if not reinforcing, homophobia in the society.

On the other hand, there are virtues to a legal victory that does not ground the claim in western-style identity politics.  By resisting framing the case as a “gay rights” case, in favor of a more generalized sense of personal dignity and privacy, the court defers the development of a jurisprudence that seeks to identify a class of lesbian and gay people and then provide them legal protections on the basis of their identity.  Much has been written, by myself and others, on the pitfalls of identity-based civil rights strategies, especially when they are imported to non-western contexts.  Civil rights paradigms that insist that sexual identity and desire are taken up in the same way in all corners of the globe risk a kind of sexual imperialism that ought give us pause.

Rather than seeing the Ugandan court’s refusal to see the case as about the rights of “homosexuals” as an unfortunate dodge or worse a form of homophobia, consider how it might reflect an opportunity for the law to condemn bigoted hatred and violence, while not predicating that condemnation on the assertion of a stable, familiar lesbian or gay identity.  Some might even call this project queer.

http://blogs.law.columbia.edu/genderandsexualitylawblog/files/2011/01/UgandaRuling.pdf

7 comments

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