A vocal and vibrant movement has now emerged around the world, including in Asia, to empower LGBTI individuals. Human rights defenders from every country in Asia are working on improving sexual orientation and gender identity rights.
Yet, we still hear the assertion that same-sex marriage is a “western” concept or is against “traditional values” in Asia. Here, we answer some of the most commonly asked questions on same-sex relationships:
1. Aren’t same-sex relationships against traditional values in Asian societies?
If recent developments in Asia can be an indicator, same-sex relationships are increasingly embraced by this diverse continent.
In 2017, Taiwan’s Constitutional Court ruled in favour of marriage equality and ordered the government to legislate on the equal protection of the freedom of marriage. This September, India’s Supreme Court overturned a 157-year-old law criminalizing consensual same-sex sexual acts.
In Hong Kong, courts have recognized some rights for couples who have formalized their relationships in countries where same-sex partnerships have been legalized. In Japan, nine municipalities have written instruments to recognize same-sex relationships for certain everyday purposes. The Thai government is preparing a draft bill to recognize same-sex partnerships.
Many officials throughout Asia have also made it clear that there is no place for discrimination in their societies.
After Taiwan’s milestone ruling, President Tsai Ing-wen said that the law “must protect people’s freedom of marriage and right to equality”. Prime Minister Rui Maria de Araujo of Timor Leste called for acceptance because “discrimination, disrespect and abuse towards people because of their sexual identity does not provide any benefit to [Timor Leste]”. Jiang Duan, a senior representative at China’s UN mission in Geneva, said at a UN meeting that China opposed discrimination, violence and intolerance on the basis of sexual orientation.
International law is clear that “long-standing traditions”, “societal values” or the “protection of marriage” cannot justify limitations to human rights or to justify differential treatment based on sexual orientation, even if they are shared by a majority of the society in question. As the UN Secretary-General stated in 2010: “Where there is a tension between cultural attitudes and universal human rights, rights must carry the day.”
2. Same-sex couples are unable to reproduce, so does this mean that their relationships are unnatural?
Many individuals and couples choose not to or are unable to reproduce for a variety of reasons, including infertility, financial situation or lifestyle choices. But societies rarely see their relationships as “unnatural”, and this is not a reason to prevent them from marrying.
Human rights are not contingent on whether a person is able to or chooses to reproduce. On the contrary, all couples and individuals, regardless of their sexual orientation or gender identity, have the right to decide freely and responsibly the number, spacing and timing of their children, if any.
3. What if “marriage” only applies to couples of opposite sex in our country’s laws?
Some national laws may define marriage only as the union between a man and a woman, but a non-inclusive marriage law is not an acceptable justification to discriminate on grounds of sexual orientation.
International law does not prohibit same-sex unions. However, it does prohibit discrimination on the basis of sexual orientation with the understanding that sexual orientation is part of a person’s innermost character and identity. Therefore, even if a country has yet to recognize same-sex unions, it still has the obligation to protect same-sex couples from discrimination. Amnesty International holds that this means same-sex relationships need to be recognized equally and on the same basis as those of opposite-sex couples.
National laws or policies that restrict “marriage” to opposite-sex couples have not stopped national and international bodies, including courts, from interpreting those laws in ways that protect against discrimination and recognize rights for same-sex couples.
4. Shouldn’t the courts stay out of our societal values?
National courts are under a legal duty to enforce all relevant domestic and international rules, including anti-discrimination laws. This is especially the case when government inaction compounds human rights abuses, as well as when the rights of minorities are at stake. Human rights should not depend on majority “approval”, especially when those affected most are outnumbered by those who are not.
Equality is only meaningful in society when it is actively reinforced in laws, policies and practices. The rights to equality and protection against discrimination are fundamental principles of international human rights law – for example, the International Covenant on Civil and Political Rights, which is binding on most states in Asia. Under the Covenant, in order for human rights to be enjoyed by all, the authorities are obligated to ensure that laws and policies in the country do not discriminate against people based on their real or perceived sexual orientation or gender identity. It must also address discriminatory practices and work to dispel conditions and attitudes that contribute to discrimination.
5. Why should we be granting rights to “special” groups that prioritize their protection over others’ ?
LGBTI individuals, couples and communities are part of society. If one is serious about protecting all members of society as a whole, that means embracing and encouraging diversity, as well as recognizing that different people face different challenges and different forms of discrimination and thus may need special protections in law and policy.
Our work shows that LGBTI people in many countries are not granted the same rights as others just because of who they love or how they express their identities. Some are even vulnerable to violence and other ill-treatment. Addressing the concerns of various groups in society isn’t a matter of favouring one over the other or imposing one set of values onto different people; it is about making sure no one is seen as a lesser human because they are different.
Affirming LGBTI rights as human rights does not mean claiming new or “special” rights. It means demanding that everyone is guaranteed the fullest enjoyment of their civil, political, social, economic and cultural rights.
6. Are children with parents in same-sex relationships negatively impacted?
The sexual orientation of parents does not harm children, but prejudice against children with same-sex parents does.
Families with heterosexual parents have been presented as “traditional” and the only acceptable norm when in fact there are many types of families across cultures. Many of them provide love, support and encouragement for their children.
There is no systematic evidence of negative outcomes associated with having same-sex parents or that children with gay parents are more at risk of abuse or neglect than children in households with heterosexual parents. Studies in the USA have shown that adopted children raised by same-sex and different-sex couples develop in typical ways as measured by parents and teachers. To deem a group of people unable or unworthy of parenting simply due to their sexual orientation or gender identity is discriminatory in itself and perpetuates harmful stereotypes about LGBTI people.
7. Why are some schools using curricula that include sex education and LGBTI issues?
Comprehensive education about gender equality, sex, and sexuality, as well as access to sexual and reproductive health information and services, resources and support, ensures that children develop in a healthy environment and empowers them to make more informed decisions about their bodies, health and lives.
The state has the duty both to ensure that children receive evidence-based, scientifically accurate and age-appropriate sex education and also to work to combat negative stereotypes. To suppress information about sex, equality, sexual orientation and gender identity can exacerbate the marginalization, harassment and bullying suffered by affected children, bolster homophobic discrimination and undermine sexuality education.
The UN Committee on the Rights of the Child has confirmed that “[a]ge-appropriate, comprehensive and inclusive sexual and reproductive health education, based on scientific evidence and human rights standards and developed with adolescents, should be part of the mandatory school curriculum and reach out-of-school adolescents” and that particular attention should be given to gender equality and sexual diversity.