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Homosexuality and Crime - From Criminal To Human Rights Law

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In the last decades of the twentieth century, many governments took steps to rectify discriminatory regulations imposed on citizens' freedom to form the sexual and affective relationships of their choosing. As justice, rather than crime, has come to define public discourse around homosexual relations, governments have increasingly recognized their gay, lesbian, bisexual, and transgendered populations as subordinated and vulnerable peoples whose fundamental rights to life, livelihood, and democratic participation have been unjustifiably compromised by social prejudice and misuse of state power. Redress for discrimination experienced in employment or housing was a demand first pressed by many labor unions in the 1970s, and adopted by voluntary associations and municipal governments. Norway became the first country to adopt a national antidiscrimination law in 1981. By the end of the 1990s, human rights legislation including sexual orientation as a protected category had become widespread in the European Union, including Sweden, Denmark, Iceland, France, Spain, Finland, the Netherlands, Luxembourg, and Switzerland (International Lesbian and Gay Association). In Canada, human rights law reform came province by province, first with Québec in 1977 and culminating in a Supreme Court decision in 1998 that ordered the last hold-out among the ten provinces to adopt antidiscriminatory law. Australia undertook a similar state-by-state process; New Zealand adopted its law in 1993. The United States shows a much slower movement toward legal reform with only ten of fifty states having human rights laws. One state, Maine, repealed its human rights law in a state-wide referendum. Sexual orientation legislation is appearing in other countries that undertook constitutional reform in the 1990s, namely, South Africa, Slovenia, Ecuador, and Fiji. Somewhat more restrictive human rights legislation, applied only to employment, is now in place in Ireland and Israel. Included in some human rights legislation are anti-vilification provisions that prohibit hate propaganda and incitement to violence.

The advent of AIDS in the 1980s introduced a new round in conflicts over sexual regulation. AIDS was seized upon by the traditional opponents of homosexuality as a tool for recriminalization. While some of the more egregious initiatives have been turned back, a myriad of punitive and exceptional laws are now on the books that limit safe-sex education, pretend to control sexual transmission of HIV, or prohibit travel. The United States has distinguished itself with a law that discriminates against the entry of HIV-positive individuals into the country; as a result, the United States has been boycotted by the leading world AIDS research organization, the International AIDS Society.

The frontier of full citizenship rights at the end of the twentieth century is the legal recognition of same-sex partnerships. Denmark initiated a registered partnership program for same-sex couples in 1989. Norway, Sweden, the Netherlands, and Iceland have followed the Danish precedent, and a supreme court decision in Hungary has included same-sex couples in common law spousal status. Broad legal recognition is now in place in the Canadian provinces of Québec, Ontario, and British Columbia (a federal bill, C-23, is currently before the Canadian Parliament but not yet passed), the Spanish regions of Catalonia and Aragon, and the U.S. states of Hawaii and Vermont. All of these laws, however, fall short of full equality, often barring gay and lesbian couples from full-fledged marriage, adoption, or access to alternative insemination. Beginning with Utah in 1995, a wave of preemptive legislation and referenda swept through the United States to ban "gay marriage," extending in five years to thirty-one states and the federal Congress.

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