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Gendering Human Rights: self-determination, religious freedom and sexual minorities

Crossing the Boundaries: the place of human rights in contemporary scholarship
Afternoon panel session:

Chair: Professor Anne Phillips
Speakers:  
Mr Holning Lau Sexual minorities' human rights & the confines of the individualist legal regime|
Ms Anat Scolnicov The right to religious freedom: a gender analysis and its legal implications|
Assistant Professor Michael Weinman Living well and sexual self-determination: expanding human rights discourse about sex and sexuality|

Mr Holning Lau
Sexual minorities' human rights & the confines of the individualist legal regime

My paper proceeds in two parts. First, I examine how the notion of individual rights under protects sexual minorities from discrimination. Second, I explore how political philosophy and psychology can help jurists expand their conceptualization of sexual orientation rights beyond human rights law's traditional individualist paradigm.

To illustrate the inadequacy of individual rights, I begin with an example from LSE's backyard: Two years ago, Mayor Ken Livingston banned Sandals, the beachfront resort chain, from advertising in the Underground because Sandals' romantic getaways only accommodated mixed-sex couples. Subsequently, Sandals modified its restrictive policy.

Was the ban on Sandals justified? In an individual rights paradigm, whether Sandals ever discriminated against gays and lesbians is unclear. Any individual gay man could have accessed Sandals, so long as he brought a female companion. In an individualist paradigm, Sandals can be equated with a retailer that only sells women's lingerie. Any individual man can access the lingerie shop, buy lingerie, and wear it as he so pleases. In an individualist paradigm, requiring Sandals to modify its product is akin to requiring the lingerie retailer to start selling boxer shorts just to accommodate men. Sandals was discriminating not against individual gays and lesbians, but against collective entities: same-sex couples.

The example of Sandals prompts the question: should a couple, as a collective entity, have aggregate rights that are irreducible to the individual rights of its individual members?

An individual's notion of self can be inextricably linked to her membership in ethnic and religious groups. Accordingly, some political theorists have argued that protecting an individual requires not only protecting her right to associate with those groups, but also protecting those groups' aggregate rights. Similarly, one can argue that an individual's notion of self-especially her notion of sexual orientation-can be inextricably linked to her coupling status. In fact, in the United States' sodomy case of Lawrence v. Texas, psychologists argued that intra-couple bonds are identity-shaping. Thus, I propose that interdisciplinary dialogue among legal scholars, political theorists, and psychologists would advance a theory of couples' aggregate rights.

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Ms Anat Scolnicov
The right to religious freedom: a gender analysis and its legal implications

A core problem in understanding the right to religious freedom, is the inherent conflict between religious freedom and women's right to equality and individual religious freedom. The conflict in this area is not accidental. The doctrines of many religions have sought to regulate family life, deciding on the role of men and women within the family as one of the bases of the social structure that the religious doctrine sets up. Important inequalities in this area emanate from religion. While the effect on equality of women by religions to which they belong has not traditionally been seen as a religious freedom concern, it is an important one from women's point of view. The ability of women to belong to a faith of their choice, or, more often, a faith into which they were born and comprises their social and cultural connections, without being discriminated against, is vital to realizing their religious freedom. Application of feminist analysis to law is helpful in justifying this interpretation. In my analysis I will draw upon international law as well as domestic law of several Western as well as non-Western states to illustrate the problems and their proposed solutions.

In this paper, I will explain first why both the right to equality and the right to individual religious freedom of women should be seen as standing in conflict with community religious freedom. Then I examine the existing relative international legal protection of rights in this conflict. I show that there exists a legal determination that posits women's individual rights above claims of group religious freedom. It will then be argued, that the determination that group religious freedom cannot override women's individual rights should be upheld, but attention must be given to the complex problems this determination creates: Once a state acknowledges a right to religious freedom of communities and relegates legal powers to them, it is in practice more difficult for the state to implement rights of equality for women. For example, states may need to address discrimination of women in religious marriages even where there is no religious jurisdiction over personal law. However, not giving legal recognition to personal status systems of religious communities because they are discriminatory can result in further discrimination of women, which must be rectified. A clear, albeit far-reaching, consequence of recognizing the individual rights of women to equality and to freedom of religion and belief over any communal right of religious freedom is that religious institutions should not be able to curtail these rights of women even in their internal organisation. Finally, the compatibility of institutional participation of religion in the law-making process that determines the rights of women, both at the national and international level, with religious freedom is questioned.

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Assistant Professor Michael Weinman
Living well and sexual self-determination: expanding human rights discourse about sex and sexuality

I endeavour to make the case that a capability approach expands the horizons established in earlier and contemporary strict rights-based approaches, especially in terms of sexual reproduction and sexuality, by raising the threshold a society must meet from recognizing an individual's (negative) right to non-interference against the state to recognizing a shared responsibility to support every person's capacity to fulfil their potential. One stark example of this difference would be the battle over a "right to privacy" in the United States. While the strict, or classically constructed, rights-based approach demands a right of the individual against the state to privacy so as to protect specific rights, the capability approach, shifts the emphasis from the individual to society: there is a social responsibility to provide for each individual's capability to live each day as a symphony of the desiring and reasoning aspects of their being. This means that the "right to choose" is not about inalienable rights against the government, but a social responsibility to provide for each individual's fulfilment of what Aristotle calls our ergon, our particular "work."

This paper progresses in four parts. In the first, I provide a brief account of the "capability approach," and a defence of its superiority to the existing deontological and consequentialist frameworks that human rights discourse relies on. In the second, I present some recent attempts to articulate and defend sexual self-determination and the weaknesses of these attempts. In the third, I suggest that Aristotle's understanding of the nature of human being offers a viable alternative to the "privacy" model thus called into question: an account of the ethical responsibility society shares to ensure the abilities of all sexually active human beings to make the choices they wish to make, as the fulfilment of their very being. In the final section, I conclude by first responding to two central criticisms to which the framework I provide can be subjected, and then putting forth in some, if sketchy, detail what we might see should the capability approach be adopted in human rights practices concerning sexual and reproductive freedom.

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