How UTLaw is part of a landmark project to eliminate life-threatening discrimination
Experiential learning: UTLaw students Jeff Marshman, Heather Palin, Atrisha Lewis and Zahra Ahmed volunteered with the Envisioning project
By Brent Ledger / Photography by Jeff Kirk
Earlier this year, third-year law student Heather Palin got a chance to make history on the other side of the world. The Indian Supreme Court was hearing the appeal of a landmark 2009 decision that had decriminalized gay sex between consenting adults, and one of the leading lawyers in the case needed some key documents. The case had vast implications not just for India’s 1.2 billion people but for countries throughout the global south. Versions of India’s anti-sodomy statute, known as Section 377, exist in other former British colonies as well. The lawyers representing the gay-rights forces were among the most prominent in the Indian bar but they were missing some key texts. So they talked to their Canadian partners in the Envisioning Global LGBT Human Rights project, a five-year multi-disciplinary program, funded by the Social Sciences and Humanities Research Council of Canada (SSHRC), that is researching the state of gay rights in several former British colonies around the world, and asked for help.
At the University of Toronto Faculty of Law, the Envisioning project partners with Pro Bono Students Canada and the International Human Rights Clinic, and involves more than a dozen law students including Palin. She was in the midst of studying for exams at the time of the request but she hurried to gather the needed documents.
The verdict in the Indian case won’t be known for some time but for Palin it was part of what she laughingly calls her “crash course in human rights and gay rights issues.” Interested in criminal law and human rights, Palin was still shocked at the extent of anti-gay discrimination around the world. “My best friend is gay and … I couldn’t actually believe that there were places where all these things were still going on.”
Here in Canada we tend to take gay rights for granted. Although the gay community has certainly suffered persecution (see especially the bathhouse raids of the early 1980s), no one has been arrested for homosexuality per se since the 1960s. The Criminal Code was amended in 1969 as part of Prime Minister Trudeau’s push to keep the state out of the “bedrooms of the nation” and the struggle ever since has focussed on refining such relationship rights as marriage and pensions. Discrimination remains a problem in some quarters but the idea of gay rights is firmly entrenched.
For gay and lesbians elsewhere in the world, though, it's often a struggle simply to exist. Some 76 countries continue to criminalize homosexuality (at least five with penalties that include death) and whether or not those laws are invoked, they speak to the intolerance that continues to reign over much of the globe. In Uganda, the government is trying to make homosexuality punishable by death and under a proposed law even promoting gay rights would be a crime punishable by seven years in jail. In Jamaica, gays are routinely beaten and killed, and the police are often indifferent or worse. In India, one eunuch was raped by thugs and another tortured by police. The Envisioning project aims to alleviate at least some of that suffering by documenting the oppression and the resistance, as well as its implications for human rights policy.
Because many of the anti-gay laws still on the books are a legacy of British colonialism (and are disproportionately common in Commonwealth countries like some of the ones Envisioning is studying), some of the students’ work is historical, tracking the evolution of punitive laws. But they’ve also canvassed media reports and tracked official government positions on the issue. Much of the work is pure research but because of the project’s commitment to “knowledge transfer,” it has real-life consequences as well.
“Part of the legal team’s job is helping to dig up research for lawyers who are currently in the middle of challenges,” says Palin. “So if they need a legal question answered, students work on doing some legal research, case law and legislative history.”
Notable charter lawyer Douglas Elliott, LLB 1982, chair of the Envisioning project’s legal committee
There’s a lot of great legal work being done in these countries, says Douglas Elliott, LLB 1982, the renowned charter lawyer who chairs Envisioning’s legal committee. But some legal teams don’t have the resources required to do the necessary research. (Depending on where they are, Internet service can be spotty and computerized legal research prohibitively expensive.)
In Canada, Elliott is best known for his charter and class-action work on behalf of gay and lesbian couples. Over the past two decades, he has appeared in almost every high-profile gay-rights challenge, from M. v. H. (the landmark decision of the Supreme Court of Canada on equality rights for same-sex couples) to the same-sex marriage reference in the SCC. As co-founder and first president of the International Lesbian and Gay Law Association (ILGLaw) he also has a long association with international gay rights. One of the things he learned long ago, he says, is that “when you’re a human rights lawyer, to a significant extent, you’re in the hope business. You have to feel and convey the feeling that positive change is possible. That is what we are bringing to the table for a lot of these people—the sense that they are not alone.”
Painfully aware that similar studies of the global south have been tarred as neo-colonial intrusions, the Envisioning project has partnered with 32 activist organizations and NGOs on the ground—and only goes where it’s wanted. Palin concentrated on Jamaica and one of her colleagues in Pro Bono Students Canada, Jeff Marshman, looked at Guyana, where a constitutional challenge to a criminal prohibition of cross-dressing is underway. He’s been in touch with the legal team there and has volunteered his services for research.
Much of the work involves creating a knowledge network around the world, and of course most of that is best done face to face. Last February, Palin and Elliott attended a conference on gay rights in the Caribbean that attracted lawyers and activists from all over the world, and gave Palin a new sense of what her work was all about. “It was quite something,” says Palin, who describes herself as white, middle-class and well-educated. “I think I was maybe one of two or four straight people there. It was probably the first time I have ever felt as if I were a minority in my life.”
In March, Atrisha Lewis and Zahra Ahmed, two students in the International Human Rights Clinic, went to Geneva for a historic meeting of the United Nations’ Human Rights Council. They went hoping to fill in some gaps in their research on the diplomatic positions on sexual orientation and gender identity (SOGI) rights in 10 countries, and their relationship to international forums and monitoring bodies, such as the UN. They came away with a new sense of the complicated dynamic at work in international human rights.
When you’re a human rights lawyer, you’re in the hope business. You have to feel and convey the feeling that positive change is possible.
- Douglas Elliott, LLB 1982
It was the first formal intergovernmental discussion of SOGI rights at the UN and a who's who of international LGBT activists were there. Lewis and Ahmed met human rights officers and representatives of NGOs and heard a groundbreaking report on discrimination and violence against sexual minorities presented by the UN High Commissioner for Human Rights. But the highlight of their trip was meeting Hina Jilani, the Secretary-General’s former Special Representative on Human Rights Defenders and co-founder of the Human Rights Commission of Pakistan. They followed her through the corridors of power as she conferred with various activists and advocates and listened in on their concerns and confabs.
“It was fascinating to see how the UN works on the inside," says LLM student Ahmed, who hopes to move into international law, "and how the negotiations happen before the final document or resolution is produced. At the end of the day the State has to confirm [any policy decision], but a lot of it depends on who the actual representative is at the UN.”
"It was great," says Lewis. "It's crazy to believe that as a third-year law student I was sent to Geneva to conduct these interviews and to meet all these really amazing people. It was a great opportunity from a student perspective.”
It’s one thing to read about human rights cases at school, she says. But quite another to “watch real live human-rights advocacy, watch some of the NGOs meet and debate with each other to determine what the best strategy was for them as a group, which statements to make at the UN, and to watch them talk to UN officials and state representatives. It's very personality-driven, very one-on-one, and I think people forget that."
For the students, the work is first and foremost a chance to gain experience in a new field, to see how the world works outside Canada and to meet high-end legal minds. Not just the likes of Douglas Elliott, but also eminent international lawyers like Maurice Tomlinson of Jamaica and Adrian Jjuuko, a straight activist lawyer who’s put his life on the line to work for gay rights in Uganda.
“For a third-year law student,” says Palin, “that’s pretty awesome, to be able to learn from and network with those legal minds.”
But there’s also the hope of doing good, although always in a low-key, unobtrusive very Canadian way. Some of the students have gay friends and/or a keen interest in international human rights, but whatever their motivation, they’re not wild-eyed innocents or thorough-going idealists. Nor do they think that legal change alone is enough. Even in a country like South Africa that long ago decriminalized homosexuality, notes Ahmed, there’s still anti-gay violence. For gay rights to succeed in these countries, says Lewis: "There has got to be pushback on all angles, at the UN and in the courts, on the ground with the government.”
Still, nobody doubts that they’re making a difference, even it’s only bringing solace and support to people who live in fear, in countries where dissent is dangerous and difficult. The Envisioning endeavour is primarily a research project, and one moreover that has adopted a collegial approach to legal aid, so it cannot hope (and does not wish) to change local laws and attitudes by itself. But by documenting the struggles of emergent gay rights groups, and the history of their oppression, it gives voice to groups that have been largely silenced.
In Uganda, an activist like Adrian Jjuuko is reviled and ostracized. In Canada, where he spoke last March at the Faculty of Law, he was roundly applauded. “So for him,” says Elliott, “it’s a completely different and much more positive experience. And it’s all been made possible by the Envisioning project.”