Safeguarding the Rights of Sexual Minorities: The Incremental and Legal Approaches to Enforcing International Human Rights Obligations

I. INTRODUCTION

The stark contrast between the aspirational, lofty language of international human rights treaties and the domestic laws of their signatories-not to mention official statements made by those signatory nations' leaders-is truly astounding. To note just one example of this disparity, Zimbabwe signed the International Covenant on Civil and Political Rights ("ICCPR"), pledging that its own "law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination."1 But in 2006, Zimbabwe passed legislation that makes it a crime for two people of the same sex to kiss, hug, or hold hands2-and Zimbabwe's current leader, President Robert Mugabe, has publicly stated that gays are "worse than dogs and pigs"3 and has urged members of his party to tie up homosexuals and bring them to the police to be arrested.4

Even in nations where both international treaties and domestic laws protect the rights of sexual minorities,5 violent hate crimes and other forms of discrimination still occur with shocking regularity. South Africa provides a particularly graphic example; it was the first African nation to adopt a constitution providing for, among other things, sexual minority rights6 and the first African nation to legalize same-sex marriage.7 Despite these measures-or perhaps, as this Comment will suggest, as a result of these measures-violent attacks against openly lesbian, gay, bisexual, and transgender ("LGBT") South Africans continue, with "corrective rape" occurring with some frequency.8 Certainly, antigay laws and state-supported discrimination can, and do, increase violence toward gays by legitimizing homophobia and by inciting the public, which previously might not have paid much attention to the LGBT community.9 Laws that protect sexual minorities are clearly a necessary condition-but not necessarily a sufficient one. The presence of domestic and international laws protecting gay rights is not enough to change a population's attitudes and actions toward the LGBT community.10