In this virtual workshop, Ayodeji Perrin (Penn Carey Law) presented his recent work on LGBTQ Human Rights norms.
Paper Abstract
In this paper, I argue that human rights norm diffusion theory in international law and relations literature can be enhanced by taking greater account of domestic and transnational litigation. Grounded in fields of inquiry and concepts such as comparative constitutional law/studies, transnational judicial dialogue in IR theory, frame alignment in social movement theory, and legal frames in legal mobilization theory, I advance understandings of human rights norm diffusion by conducting micro-level analysis that centers aggrieved individuals and groups and cause lawyers that are the activist plaintiffs and defendants in constitutional civil rights and international human rights cases, as well as the academics and other individuals and groups that write amicus briefs and intervene in litigation as interested parties, and the individual judges that write majority, concurring, and dissenting opinions while engaging jurisprudence from other jurisdictions.
Empirically, as a case study in norm diffusion, I survey the evolution of the decriminalization norm – the idea that male-male sodomy and other adult consensual same-sex sexual conduct should no longer be an offense under the criminal law. Providing an overview of the U.S., U.K., Irish, Australian, and South African activists central to sodomy decriminalization legal mobilization between the 1950s and the 1990s and the resultant jurisprudence produced, I demonstrate that aggrieved individuals and groups – whether criminal defendants (reactive litigants), or gay rights organizations (opportunistic or proactive strategic litigants) helped to produce an expansion of LGBTQ human rights norms through legal concepts (rights) such as privacy, equal treatment or protection under the law, and human dignity. It is subsequent to nearly fifty years of litigation (alongside other critical forms of grassroots activism) that states began to codify these norms (decriminalization, LGBTQ privacy, equality, and human dignity) in the twenty-first century.
This conceptual and analytical move involves decentering the state, international treatymaking, and state-to-state compliance mechanisms. It does not require a false choice between the two approaches, rather an appreciation for how the two approaches – state-centric analysis of the international human rights regime and micro-level analysis of activists and judges making constitutional and statutory rights claims in domestic courts – complement and enrich each other to provide a more complete theoretical understanding of norm diffusion generally as well as a more complete historical narrative of LGBTQ human rights norm diffusion specifically.
By producing this overview and expanding the historical narrative, I also undertake an act of historical recovery – reinscribing individual activists, organizations, lawyers, academics, and judges who have been overlooked, marginalized, or erased from the narrative of human rights expansion and of civil and political (constitutional) rights expansion in various countries.
Speakers
- Ayodeji Perrin (presenter) is Sharswood Fellow at Penn Carey Law.
- Clare Ryan is Professor at the University of Washington College of Environment.
