National PR machines are quick these days to paint themselves as champions of sexual and gender justice. But history betrays this cheerleading. And, interestingly, the education system—which sees itself as an important site where young citizens are molded—is where official exceptions to such justice can often be found.
I know that in Canada, at least, some of the protections that we receive are very identity based, and even these are limited. For example, employment expert Daniel Lublin writes that "in Ontario, the Human Rights Code provides that a religious or educational institution can implement requirements that discriminate against individuals who do not follow their religious beliefs, so long as that requirement is imposed in good faith and with the belief that it is necessary."
This type of exception is found elsewhere, too, and has been put into practice plenty of times. In 1995, British Columbia's Trinity Western University won at the level of the B.C. Supreme Court in a case that hung around its policy of having students sign a "Community Standards Contract" affirming their condemnation of homosexual behavior (as per the Evangelical Free Church of Canada's interpretation of their bible). This was considered fair, goes the legal logic, because making sure your teachers are homophobic doesn't necessarily mean they're going to actually discriminate against any future gay students. Of course not.
More recently, William Whatcott has proved that free speech trumps restrictions on hate speech by arguing that flyers he passed out condemning the sin of sodomy (an action) did not discriminate against gays (an identity category). Says Jonathan Kay for the National Post: "In 2001 and 2002, [Whatcott] toured Saskatoon and Regina, putting flyers in home mailboxes that urged politicians to 'keep homosexuality out of Saskatoon's public schools!'" and declaring "that young children 'are more interested in playing Barbie & Ken rather than learning how wonderful it is for two men to sodomize each other.'" Well, we'll see if this one gets appealed further in the future.
So you can see how this conception of rights can leave little room for protecting people based on their actual activities. Its focus on identity labels also tends to reify particular identity concepts, like gay and lesbian, as the norm around which people with other sexual minority practices must define themselves. If they want sexual rights, that is.
For a lot of people—especially migrants, people of color, and others who are a part of communities that understand their sexual subjectivities in other ways—this legal thinking may leave them stranded. "Gay," "lesbian," or even "queer" may not be concepts of their own choosing. And for those not living in Western nations, the possibilities for organizing and joining with other anti-racist sexual coalitions are limited by this configuration of rights because the global "gay rights" discourse takes the West as norm. And in the West, it is the protection of the more abstract sexual identity that takes precedence over finding ways to legally protect the diverse relationships and family forms in which people become responsible for caring for each other, and creating networks of financial and material aid. We have seen the many ways in which this attention to single-issue identity politics makes things more difficult—especially since the single-issue focus has often served to naturalize that gay issues are white people's issues and ethnic minorities' issues are issues of racism. These equations can make sexual issues for people of color invisible.
For years now, feminists of color, queers of color, and others committed to the growth of anti-racist sexual rights have pointed out the irony I mentioned above: that, as countries that have long been full of legal and social oppression toward sexual minorities begin changing their oppressive laws, they suddenly get amnesia about the official discrimination authorized such a short time ago by the old laws. This forgetting is less an indicator of progressive gender politics than it is of regressive race relations (Haritaworn, Tauqir & Erdem, 2008).
Pinkwashing—which in this case refers to the use of gay rights as a PR tool and not using pink to pretend to care about breast cancer—is one form of it. Says Sarah Schulman: "Changes [like protection from discrimination and relationship recognition] have given rise to a nefarious phenomenon: the co-opting of white gay people by anti-immigrant and anti-Muslim political forces in Western Europe and Israel."
And it's not just that some white gays and lesbians are co-opted. There's plenty of room for their agency in these phenomena. Thinkers like Jasbir Puar, Sarah Ahmed, Aren Aizura, Jin Haritaworn, Tamsila Tauqir and Esra Erdem have written on this at length. They've identified a pattern of white people claiming expert status with regard to Muslims as though Muslims are not also activists and authors, as though their words require the interpretation of white experts. Moreover, they've also identified a pattern of selectively presenting the words of queer Muslims, especially, as the exceptions that prove the rule that Islam is homophobic. The writing and activism that contributes to these patterns is often done with good intentions, but it still has harmful results. The biggest beneficiaries of the new "us"/"them" configuration, such thinkers have said, are white women and gay men—not Muslims or other people of color, gay or straight.
In "Gay Imperialism," Haritaworn, Tauqir, and Erdem explain how these sexual discourses in the War on Terror era can "reinforce a construct of 'Eastern culture' as homophobic (and therefore open to official control and of re-colonization by the 'liberated West')." ("Gay Imperialism" is an amazing piece on this topic which is found in an edited book no longer in print due to a controversy with British LGBTQ activist Peter Tatchell. Aren Aizura has posted a PDF of the chapter here, however.) Thus, many migrants to Western nations are being discriminated against in immigration processes on the grounds that their values on gender and sexuality are incompatible with those of the Western nations. Yet, for another example of Western amnesia, it was only in 2003 that Britain repealed Section 28 of the Local Government Act 1988 that said schools "'shall not intentionally promote homosexuality or publish material with the intention of promoting homosexuality' or 'promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family form'" (qtd. in Haritaworn, Tauqir, & Erdem, 2008).
My point here is that as new generations come up in environments of increasing sexual freedom and as history class textbooks are re-written to reflect new anti-discrimination laws, we can't forget that anti-discrimination laws don't replace every discriminatory citizen's attitude. Gender and sexual inequalities still exist here in North America and in the rest of the global North. And we have to be mindful not to use the freedoms and equalities we do have as an excuse to judge and control the lives of others elsewhere.