The second post on our forum on Joe Hoover’s Reconstructing Human Rights, from DoT’s Anthony Langlois. You can read Joe’s opening post here and Karen Zivi’s commentary here.

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 As I was reading Joseph Hoover’s fabulous new book, a critical debate was going on at the peak human rights institution of the global political system. The Human Rights Council, an institution to which UN Secretary General Ban Ki-moon suggests “all victims of human rights abuse should be able to look…as a forum and springboard for action”, was debating a resolution to establish a UN Independent Expert on Protection Against Violence and Discrimination based on Sexual Orientation and Gender Identity. On June 30, 2016, after extensive debate, in which much opposition was expressed, the Human Rights Council voted in favour of this UN Special Procedure, establishing the office of the Independent Expert on Sexual Orientation and Gender Identity (SOGI).

It is a harsh reality that in many countries around the world, lesbians, gays, bisexuals, trans* and others of queer and diverse sexual orientation, gender identity and expression (LGBTQ) are not able to look to human rights institutions for support and protection, or, those institutions find themselves constrained and unable to offer such support and protection openly, or at all. The creation of the SOGI expert by the UN is in part a recognition of this, and it is seen by many as a critical further step in the UN’s recent activism on this routinely neglected area of human rights concern.

But as well as allegedly being “progress” in the human rights agenda of freedom and emancipation, it should cause us to pause and think. What does it mean that Human Rights have only come lately to queer communities, if at all?

Hoover does not directly consider this question. But the debate about gay rights, human rights for queers more broadly, and their place in IR, plays a role like that which Hoover shows the right to housing to play. Hoover uses the right to housing to destabilise, challenge, pluralize, democratize and reconfigure our received ideas of human rights. I would suggest that this is also precisely what happens, or, at least, what can happen, when human rights meets sexual orientation and gender identity expression, as well.

Despite this possibility, gay rights are typically subsumed into the standard progress narrative of liberal internationalism, co-opted by all the exclusions, essentialisms, certainties and the sense of righteousness which Hoover critiques and warns against. Hilary Clinton’s “Gay rights are Human Rights” speech to the UN General Assembly while she was Secretary of State, is perhaps the consummate performance in this genre. (There is a terrific reading of it in Cynthia Weber’s new Queer IR book). But for many queers, being figured in this way, as a gay human rights holder within the neo-liberal global political architecture, takes away, rather than gives, the hope and radical fight which might otherwise be associated with the notionally emancipatory and radically democratic ethos of human rights.

Hoover articulates this tension and some of its implications well when he says:

On the one hand, human rights can encourage a technocratic neo-liberal order based in a conception of the rights holder as individualised, depoliticized, and vulnerable, such that we need powerful institutions run by elite experts to provide for our security and well-being. While on the other hand, human rights can also inspire struggles for community power, political participation, and emancipation from complex systems of social control and exclusion (p12).

To focus the matter further, the idea of being a queer who is also a bearer of human rights, can sit very bizarrely with the experience of those who, only yesterday (or perhaps even this morning), were being told that they could not possibly qualify for human rights, because their sexual orientation and activity, their gender identity and expression, their queer, misfit, broken, deformed, diseased and sinful status disqualified them (us) from being relevantly human. It is an odd sensation to go from being damned to hell, one moment, and held up in the next as an international trophy of human rights achievement. The queer must then be forgiven for developing quite a different take on what it might mean to become a normal bearer of human rights. And for queers with theoretical inclinations, such a dramatic turnaround in fortunes begs a great many questions.

What it means to be queer is, notoriously, a moot point; the following sketch is drawn from the introduction to a fascinating new book which collects writings by artists using queer for political and institutional critique:

Outlaw sensibilities, self-made kinships, chosen lineages, utopic futurity, exilic commitment, and rage at institutions that police the borders of the normal – these are among the attitudes that make up ‘queer’ in its contemporary usage. The activist stance of ‘queer’ was developed as a mode of resistance to the oppression and erasure of sexual minorities. Importantly, however, it was concurrently posited as a rejection of assimilationism proposed by many in the gay and lesbian communities who aspired to be just ‘normal’. Since its formulation in the crucible of the AIDS crisis in the 1980s, ‘queer’ has an ongoing political and cultural currency that continues to prove catalytic to artists and thinkers. It signals a defiance to the mainstream and an embrace of difference, uniqueness and self-determination. Still contentious today in LGBTI politics and culture, the defining trait of ‘queer’ is its rejection of attempts to enforce (or value) normalcy. Within artistic practice, queer tactics and attitudes have energized artists who create work that flouts ‘common’ sense, and makes the private public and political, and that brashly embraces disruption as a tactic. (Getsy 2016)

Outlaw sensibilities, rage, resistance, the rejection of assimilation, defiance toward the mainstream, the rejection of normalcy…. Do we think that the queer-as-newly-recognised-rights-bearer will easily take to being told what their human rights are, why they have them, and how they should be exercised? – particularly when the agents doing the telling (philosophers or state-functionaries alike) will often be the same agents that previously had quite a different message?

For those of us who identify with outlaw sensibilities and the rejection of “normalcy”, and yet who also hold on to a sense that in our time we cannot not want human rights, that human rights do or at least can have significant value for us, Hoover’s insightful interventions in the theorisation of how they may be of value are rich and fruitful.

Hoover proceeds by setting out the thinking of a range of contemporary human rights theorists, critiquing their substantive achievements on their own terms, as well as contending that in general they are mistaken in their quest. That quest is for certain, secure, justified and universally applicable principles; it is critically problematic, Hoover argues, because of the ways in which such principles are inevitably used to authorise and legitimate systems of political order and authority, necessitating force and violence.

This dynamic can be readily illustrated. Many jurisdictions now seek to address SOGI human rights issues, but the attempt to do so repeatedly results in significant numbers of people ending up further disenfranchised, victimised and injured by official governmental institutions and processes. Typically this is because of attempts to employ someone‘s allegedly certain, secure, universally applicable ideas about sexual orientation or gender identity and expression to determine whether someone else has been victimised or is at risk of persecution. Cases involving asylum seekers and refugees are some of the most egregious examples. For many victims of persecution, neither the ends nor the means of these SOGI related human rights procedures end up being emancipatory or rights-giving.

By reconstructing the idea of human rights as a democratizing ethos, Hoover seeks to address the way that human rights – acting as a license for authoritative intervention – often end up generating more human rights abuse. Instead of the quest for certainty, the main role of which is to legitimise political authority, he offers an approach in which “the central ideals of human rights are opened up as sites of contestation rather than closed down as sites of authority.” (21) In the end, this leads to an agonistic, radically democratic and plural vision of human rights; rather than anticipating a uniform global human rights regime, human rights are multifaceted, doing different things in different ways in different times and places.

Hoover’s account of this is rich and suggestive; there is much to be mulled over and debated, although I don’t intend to directly enter these debates here. What I really like about the book is the way in which the appeal to and practice of the human right to housing is used to illustrate Hoover’s critique and reconstruction. The range of themes that are canvassed as the implications of using the right to housing to secure radical political claims are drawn out are remarkably (although not unsurprisingly) similar to concerns which occupy some queer theorists, and others working on SOGI rights. In my space here I want to point to a few of these parallels, indicating the potential for rich detailed engagement.

Starting points: where do we go when we want to think about human rights? Contemporary theorists tend to go to the canonical literature and the established and authoritative international instruments. What if these don’t work for you? As Hoover indicates, the right to housing is often dismissed or at least discounted. Similarly, while sexuality and gender get the occasional nod of recognition, there has till recently been little more from “authorities”. (The 2006 Yogyakarta Principles was an attempt by independent international law experts to force the hand of the powers that be, by showing how existing human rights protections in international law should protect the human rights of LGBTQ persons and communities.) Starting with what is missed or abused by the cannon, starting with those who dare to press for rights not considered real rights, starting with those fighting for freedom rather than in a position to exercise authority, will set us on a significantly different journey.

Is housing properly understood as a substantive human rights? Much has been written about getting the list of rights right – but what is this “right”? Hoover comments on Habermas for example that his “project is haunted by its longing for a sense of wholeness and righteousness.” This nostalgia is really not going to work for queers who have suffered interminably at the hands of those whose longing for some lost righteousness is repeatedly translated into obsessive violence against sexual and gender diversity. Hoover sets the alarm bells ringing at their most polite level when he says: “If we do not desire such wholeness or fear the confidence of the righteous, then [Habermas’] project’s presumed undeniable rational force may begin to seem more threat than liberation.” (57)

I’m not wishing particularly to pick on Habermas, but Hoover makes another critical point when discussing him. Habermas sees constitutions and democracy as self-correcting, leading to expansions of freedom. But as Hoover critically points out, drawing on Bonnie Honig, “it is important to see who and what does that correcting… in nearly all cases it is actually the work of activists who are remaking social and political practices.” (62) The “correcting” that has led to sexuality and gender diverse people being seen as fully human and equal citizens in some states has not come from the rules and procedures, but by queer defiance against the rules and procedures of standardly homophobic states, often at enormous cost.

Similar reflections are generated by Hoover’s use of the right to housing in his engagement with Walzer. Hoover observes (95) that Walzer’s “appeal to a single identity that grounds the value of community elides the exclusions and silences that prioritizing (and constructing) one common identity creates.” Beyond this, Hoover argues, “… the communities of colour fighting in places like New York City… are not looking for inclusion…. Rather, they are demanding recognition of their experience, enacting new claims, challenging the dominant discourse, and demanding change in established institutions.” Once again, resonances with LGBTQ politics abound – and they cut in many different directions, including within the LGBTQ “community”, where a critical, interminable debate has concerned the questions of identity and community, exclusions and silences.

In the second part of the book Hoover begins his Deweyan reconstruction of human rights, and here too there are many parallels between the account he develops and themes which emerge out of queer reflection. Deep pluralism’s grappling with uncertainty and contestability, rather than seeking to elide or hide it, for example; its embrace of those otherwise remaindered as sources of value and insight, “not mistakes to be disciplined or eccentricities to be tolerated” (112); and much could be said in an engagement with the theoretical resources of expressive sovereignty.

A critical point which the right to housing repeatedly brings out is the role of economic and social issues in rights struggles. This is vital for queer communities, where being cast out of housing, losing one’s job, being denied access to health care or social support, being thrown out of one’s parent’s home and subsequently losing school enrolment,
disaffiliation from one’s religious community, and so on, are critical factors. It is vital to pause and reflect here, because of the way in which LGBT rights are often figured as primarily civil and political rights, whereas the damage is often being done to people in the domain of economic and social rights. Consequently, the granting of LGBT rights, as civil and political rights, may change nothing for marginalised queer populations who suffer continuing disenfranchisement attendant upon their material exclusion. (On this see the resources at Against Equality).

This list of possible parallels barely scratches the surface, and draws upon only a few of the observations Hoover makes which are pertinent to the debates surrounding LGBTQ and SOGI rights.  Hoover’s reconstruction project is particularly valuable for those of us committed to human rights and yet wary of their traditional exclusions and blind spots. As Hoover comments at one point, “Numerous theorists tell us that human rights offer vital protections, ensuring the well-being and protecting the dignity of the abused and oppressed in the world. Yet, in many human rights studies these people do not appear.” (174) Queers are well acquainted with this phenomenon.

As indicated at the outset, the grand institutions of the global human rights regime have finally seen fit to write LGBTQ populations and SOGI concerns into the human rights agenda. There is much to celebrate in this. At the same time, Hoover’s study provides a salutary theoretical resource for interpreting this significant development with due caution; it is a sober and erudite guide to the ambiguities that this justly celebrated victory will also bring.