By Lynnea Urania Stuart

 

Perhaps the most shocking thing about what’s come out of Washington is how little so many are shocked when it takes an unconscionable course.  On September 29, 2017 the United States voted against Agenda Item #3 from the United Nations Human Rights Council and LGBT rights organizations have decried that vote on an international scale. 

But that’s not all.  Criticism has also erupted over official statements concerning why the United States voted against a measure addressing death penalty cases including those applied to prisoners incarcerated for “same sex relations.”  Not a few countries consider transpeople as nothing different from homosexuals regardless of whom they may love so this decision really runs the gamut of LGBT.

This isn’t the first time the United States has rejected measures at the United Nations addressing the death penalty.  Administrations of both parties have done so.  The previous occurred in December 2016 when the U.S. delegation under President Barack Obama rejected a resolution that called upon states not to execute minors, pregnant women, and those with intellectual disabilities.¹

The United States doesn’t oppose lawful use of the death penalty, of course.  In fact it still can be enforced during wartime against those convicted of treason on the battlefield.  Many states practice the death penalty and the constitutionality thereof remains unsettled.  But given the current trends aimed at shedding the civil rights of LGBT peoples at state, federal judiciary, and federal department levels, some may wonder if a holocaust targeting us may be in our future.  The issue falls directly upon matters of ethics concerning various demographics and most especially what they can rightly do against other demographics, and issues of secrecy play a key role.

 

THE UN RESOLUTION

The resolution was an “Oral Revision” labeled GE.17-16638(E), and titled, “36/… The question of the death penalty.”  A total of 61 nations including France and the United Kingdom sponsored this as a draft resolution.² For the full text, click here.

Much of the text consists of acknowledgements concerning past resolutions by the UN and member states who abolished or established moratoriums upon the death penalty.  These acknowledgements are significant because this resolution addresses a broader scope of demographics than just LGBT peoples:

 

“Deploring the fact that, frequently, poor and economically vulnerable persons and foreign nationals are disproportionately subjected to the death penalty, that laws carrying the death penalty are used against persons exercising their rights to freedom of expression, thought, conscience, religion, and peaceful assembly and association, and that persons belonging to religious or ethnic minorities are disproportionately represented among those sentenced to the death penalty,

“Condemning in particular the use of the death penalty against persons with mental or intellectual disabilities, persons below 18 years of age at the time of the commission of the crime, and pregnant women,

“Condemning the imposition of the death penalty as a sanction for specific forms of conduct, such as apostasy, blasphemy, adultery and consensual same-sex relations, and expressing serious concern that the application of the death penalty for adultery is disproportionately imposed on women,”³

 

The actions set forth in this resolution consist of 14 points.  Here are some of them as written that most apply to controversy in the United States:

 

 2. Calls upon States that have not yet acceded to or ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty to consider doing so;⁴

Nick Duffy of the Pink News quoted Heather Nauert, spokesperson for the State Department, to say that the United States had “broader concerns” and that the measure called for total abolition of the death penalty.⁵ Item 2 is the closest this document comes to total abolition.  But it only asks states who have not yet ratified abolition to consider doing so.  That isn’t the same thing as ordering abolition of the death penalty.  What the United States did was refuse to consider even addressing the matter with Congress.

 

5. Urges States that have not yet abolished the death penalty to ensure that the death penalty is not applied against persons with mental or intellectual disabilities and persons below 18 years of age at the time of the commission of the crime, as well as pregnant women;⁶

Item 5 reiterates the same resolution rejected by the Obama Administration in December 2016.  This might also apply to people with autism who have yet to overcome their disability.  We have already observed a higher incidence of transgenderism among people with autism.⁷ We cannot consider transgender issues without also considering the rights of those with mental or intellectual disabilities.

 

6. Also urges States that have not yet abolished the death penalty to ensure that it is not imposed as a sanction for specific forms of conduct such as apostasy, blasphemy, adultery and consensual same-sex relations;⁸

We would be amiss to treat this item as applicable to gays and lesbians but not to transpeople.  Too many states refuse to recognize those who transition as anything other than assigned birth sex.  Too many states refuse to permit changing of birth records to reflect one’s sex post-transition.  What does that mean for those of us who marry or otherwise love another?  If a transwoman marries a man, is her heterosexual supposed to be a same sex marriage such as was asserted in Littleton v. Prange (1999)?⁹  If the same entered a relationship with a woman would that also be considered “same sex” if such are to marry?  Division remains in this respect because too many people have failed to think through the tyrannical nature of many societal traditions.  Worse yet, many clergy have dismissed the relationships of transpeople as “adulterous” whether within the marriage circle or not.  Do we go back to stoning people for adultery, or at least just stoning “women” while protecting “men” from prosecution?  Do we stone for transpeople for “apostasy” who had become personae non grata in their churches because of their gender identity?

 

8.  Also calls upon States to undertake further studies to identify the underlying factors that contribute to the substantial racial and ethnic bias in the application of the death penalty, where they exist, with a view to developing effective strategies aimed at eliminating such discriminatory practices;¹⁰

 The rights of ethnic transpeople have recently become an active area of study in the United States precisely because non-white transpeople have suffered the most.  On October 1, 2017, the National Center for Transgender Equality in conjunction with Black Transmen, Black Transwomen, Inc., and the National Black Justice Coalition released a special report titled, U.S. Transgender Survey, 2015: Report on the Experiences of Black Respondents.  Statistics regarding police interactions are telltale:  twice the level of arrests and incarceration than the USTS sample and more than 4 times that of the U.S. population as a whole.¹¹ We cannot ignore the issues of race when dealing with trans issues and that would apply also to transpeople facing the death penalty.  Nor can we afford to dismiss with disinterest cases of transpeople convicted of capital crimes.  We may find a time not far in the future in which even existing as a transperson may be treated as a capital offence as it is in certain other countries, whether or not it has been legislated and such may be covered up with practices of state-sponsored or locally sanctioned assassination.

 

9.  Calls upon States that have not yet abolished the death penalty to make available relevant information, disaggregated by gender, age, nationality and other applicable criteria, with regard to their use of the death penalty, inter alia, the charges, number of persons sentenced to death, the number of persons on death row, the number of executions carried out and the number of death sentences reversed, commuted on appeal or in which amnesty or pardon has been granted, as well as information on any scheduled execution, which can contribute to possible informed and transparent national and international debates, including on the obligations of States with regard to the use of the death penalty; ¹²

No secret execution should ever be permitted.  Even if a heinous crime may have been committed and proven, no execution should be celebrated or ignored whether it’s legal or covert. Should America’s violations be an international issue?  Definitely.

When Soviets threw religious people into gulags we considered their actions an international issue.¹³   When the Islamic Republic of Iran incarcerated and murdered dissidents we considered their actions an international issue.¹⁴  When the military government of Argentina committed mass murder and torture upon its people in the Dirty War including the rapes, torture, and murder of dissident youth in the La Noche de lost Lapices (The Night of the Pencils) before democracy returned to that nation we also regarded atrocities the same way.¹⁵  Should the United States be so arrogant to presume upon its own “goodness” that such cannot happen here?  We cannot and dare not be so naïve.

Worse yet, with regard to the treatment of LGBT peoples, too often arrests, incarcerations, torture, and state-sponsored murder with erasure have gone without notice.  We saw these things happen in Chechnya¹⁶ and Azerbaijan¹⁷ against “gays” this year while those governments denied anything improper existed.  Transpeople have likewise been targeted.  Could it never happen here?  It certainly could without due vigilance and action, and forces against transpeople have been amassing on state and federal levels.

 

ADMINISTRATIVE DISCLAIMER

Jason Mack delivered this statement on behalf of the United States:

 

“Thank you Mr. President.

The United States is disappointed that it must vote against this resolution.  As in previous years, we had hoped for a balanced and inclusive resolution that would better reflect the position of states that continue to apply the death penalty lawfully.  We reaffirm our longstanding position on the legality of the death penalty, when imposed and carried out in a manner consistent with a state’s international obligations.

We are deeply troubled whenever an individual subject to the death penalty is denied the procedural and substantive protections to which he or she is entitled.  We, likewise condemn any instance in which a method of execution or treatment during confinement is applied in such a manner as to amount to torture or cruel, inhuman or degrading treatment in violation of a state’s international obligations.  We cannot accept the implication, however, that all methods of execution have such a result.

The United States is committed to complying with its constitution, laws, and international obligations, and we encourage other countries that employ the death penalty to do so as well.

Thank you”¹⁸

 

This statement raises some serious concerns.  Mack’s statement asserts that the resolution isn’t “balanced and inclusive.”  How is it not inclusive when it calls upon all states to report to the international community in such detail?  Exactly who does this exclude?  How is it not “balanced” when it did not order elimination of the death penalty but only asked those who have not signed on to simply consider doing so?

Worse yet, condemnation of torture, cruelty, inhuman, or degrading treatment is a hollow gesture when we consider the broader treatment of transpeople in prisons.  Too many of us don’t go into protective custody.  Instead, too many are placed in positions in which rape and other forms of violence are facilitated and participation of abuses by prison personnel hasn’t been unheard of.¹⁹ What about the practice of water-boarding, obviously a practice of torture, sanctioned by the Bush administration in the wars following the 9-11 Attacks?  Donald Trump declared in the 2016 Presidential Debates that he would support worse acts than water boarding.²⁰

Such has the potential for wholesale violations of human rights.  We rarely hear of abuses precisely because we learn of them second-hand through visitors or a prisoner recently released who has witnessed it or has been a victim.   Too often, various authorities want to quash reports of incidents.  Some may dismiss reports of ill treatment as “exaggerations” or “inaccuracies” because authorities don’t regard cruelty as “cruel”.

We must recognize that “cruel, inhuman, and degrading” are relative terms, too easily subjected to widely disparate opinion and easily manipulated in an authoritarian milieu.  We must also recognize that if any demographic becomes subject to legalized prosecution there’s nothing to stop a nation from claiming it has used the death penalty “legally”.  Such can even call acts of cruelty “balanced” and even “compassionate” because it has taken upon itself the right to determine accepted definitions.

 We must also recognize that public governmental statements do not necessarily reflect what’s said privately.  Officials can make public condemnations of torture, cruelty, inhuman or degrading treatment but what’s executed behind the scenes may differ widely from what’s claimed.  The vagueness of Mr. Mack’s statement opens the door for us to consider the U.S. may have something of its own to hide.

 

AFTERMATH AND FOREMATH

Despite the U.S. vote against the resolution, it did pass 27 to 13 with 7 abstaining.  Nations joining the United States were Bangladesh, Botswana, Burundi, China, Egypt, Ethiopia, India, Iraq, Japan, Qatar, Saudi Arabia, and the United Arab Emirates.  Nations abstaining included Cuba, Indonesia, Kenya, Nigeria, Philippines, South Korea, and Tunisia.²¹ Many of these nations actively prosecute LGBT peoples.  Others simply followed the lead of the Americans or, like India, merely don’t want to interfere with other governments on this while entertaining its own favor toward the death penalty.  Huffington Post quoted Amnesty International to reveal they awarded 136 death sentences in 2016, up from 75 in 2015.²²

Though the U.N. resolution did pass, we cannot count upon Congress to ratify it.  Too easily, what has been accepted at the level of the United Nations becomes effectively nullified at the national level if a nation doesn’t happen to agree with it.  Worse yet, citizens may not know that the whole world may be watching incidents of atrocities or mistreatment of prisoners.  Prisoners typically face restrictions concerning communications they may exchange during incarceration.  Transparency isn’t one of prison staffs’ greater virtues. This has been the case in virtually every nation.  The message of the United States and others at the U.N. really amounted to saying, “Back off, nosey.”

After all, the United States really wants a death penalty and proponents will defend it as vigorously as the National Rifle Association vigorously defends access to guns. What’s particularly disturbing about this zeal for the death penalty is the overall agenda of the Republican Party led by a theocratic Evangelical Alliance.

Since the inauguration of Donald Trump not one month has passed without some action of the current administration in opposition to transpeople.  The National Center for Transgender Equality has posted a list of these actions on its website along with a list of other administrative actions that, while not directed against transpeople specifically, harm transpeople.²³

Lest we dismiss these actions as “preserving religious liberty,” we should consider what’s happening right now in the United States, most specifically in Mississippi whose passage of HB 1523 has just taken effect.  This act is called the “Protecting Freedom of Conscience from Government Discrimination Act” and it’s expressly directed against LGBT peoples.  This law permits the following based solely upon one’s own stated religious beliefs:

1. Denial of services, accommodations, facilities, goods, or privileges related any marriage being celebrated or solemnized.
2. Refusal to hire and permission to terminate and discipline anyone whose conduct or religious beliefs don’t square with an employer’s.
3. Denial of lodging.
4. Denial of adoption or foster care service.
5. Refusal to participate in sex reassignment treatments or assessment for such treatments.
6. Setting of sex-specific standards in dress and grooming for schools and businesses including use of “intimate facilities of settings.”²⁴

What this means is that if you’re transgender and your community is staunchly Baptist and Church of Christ (as most are in Mississippi), then you’ll very likely have to move away, conform through enforced detransition and possible “conversion therapy”, or you will end up homeless and unemployed.  If you do become a homeless transperson, vagrancy laws will probably kick in, resulting in incarceration in which “sex-specific” grooming standards would be enforced.  Meanwhile you may be subjected to prison rape, and possibly even torture or murder by prisoners or even by prison staff.  Your death wouldn’t be noticed as an execution because you were never formally sentenced to death in the first place.  But in spirit it really is an unofficial application of the death penalty determined upon a self-appointed kangaroo court of religionists.  The truth would be swept under the rug just like so many killings of minorities have been swept under the rug during the vicious history of atrocities against unwelcome minorities in the Deep South and official disregard for civil rights over many years.²⁵

While the U.S. vote at the United Nations wasn’t directly about such cases, consider that part of the resolution that calls for states to make available information about executions, dis-aggregated by several factors including gender and other applicable criteria.  The United Nations isn’t the only entity involved in death penalty issues and human rights violations.  Others like Amnesty International, the American Civil Liberties Union, and Southern Poverty Law Center are very interested in civil rights abuses and atrocities directed against minorities including transpeople.  However, their cases represent anecdotal incidents so we can’t say they have meaningful statistics for comparison with those the U.N. may have.

But facts deserve to be made known.  If that doesn’t happen, then there’s nothing to stop those inclined to harm minorities they don’t happen to like, and the more secrecy abounds, the more arrogance is licensed and greater space is given for potential atrocities.  By then, the potential for prisons and detention centers to become de facto death camps becomes very real.

 

THE SUBJECTION OF ETHICS TO POWERS

Great danger lurks whenever a nation, state, municipality, or even an individual determines ethics upon the dictates of a power other than compassion and logical principle.  We’re never safe to say that something’s right or wrong because a leader says so, whether that leader is determined by election, appointment, and especially by his own self-delusion.  The dream and promise of international human rights can only be reached by nations whose hearts put compassion before dominance.  Not only must a nation do this, but its people must not pretend that committing an atrocity is a compassionate act, especially if done in the name of religion.  It isn’t.

Herein we have been repeatedly tested throughout history.  There’s a right and wrong to right and wrong.  But too often, we’ve been led either though schooling, the pulpit, or military training to subject all sense of ethics and judgment to an immediate authority and to blindly accept consequences when that authority betrays its followers.  People commit and even enforce atrocities in such a milieu and secrecy is its sustenance.

The United States will go on regardless of what the outcome of the vote of the United Nations happened to be.  An LGBT holocaust hasn’t fully arrived in America, at least not yet.  But in our continuing business we must address again and again whether our hearts collectively put compassion before dominance.  Compassion demands daring to expose atrocities.  If our hearts do not put compassion before dominance, then we risk the danger that a cancer of tyranny may choke out human rights such as we have not witnessed in generations.  If ours do not, then holocaust may lurk beneath our own horizon. 

_______________________

REFERENCES:

Featured Image:  A burst of light in the clouds over the horizon, photo by the author, with the emblem of the United Nations superimposed thereon.  (Wikimedia)

 

1. Alex Emmons. “The U.S. Voted Against a U.N. Resolution Condemning Death Penalty for LGBTQ People” The Intercept (October 3, 2017, accessed October 4, 2017) https://theintercept.com/2017/10/03/the-u-s-voted-against-a-u-n-resolution-condemning-death-penalty-for-lgbtq-people/.
2. United Nations General Assembly, 17-16638(E), (September 28, 2017, accessed October 4, 2017) p. 1. http://ilga.org/downloads/HRC36_resolution_question_death_penalty.pdf.
3. Ibid, p. 3. (Italics if not bold are those of the document itself)
4. Ibid.
5. Nick Duffy. “US government defends voting against UN resolution on gay death penalty” Pink News (October 4, 2017, 12:11 pm, accessed October 4, 2017) http://www.pinknews.co.uk/2017/10/04/us-government-defends-voting-against-un-resolution-on-gay-death-penalty/?utm_source=Facebook&utm_medium=PNFB&utm_content=ND.
6. Op cit.
7. Byrony White. “The Link Between Autism and Trans Identity” The Atlantic (November 15, 2016, accessed October 5, 2017) https://www.theatlantic.com/health/archive/2016/11/the-link-between-autism-and-trans-identity/507509/.
8. Op. cit.
9. “Littleton v. Prange” FindLaw (October 27, 1999, report accessed October 5, 2017) http://caselaw.findlaw.com/tx-court-of-appeals/1079164.html.
10. Op. cit.
11. James, S. E., Brown, C., & Wilson, I. “2015 U.S. Transgender Survey: Report on the Experiences of Black Respondents” (2017, accessed October 1, 2017) Washington, DC and Dallas, TX: National Center for Transgender Equality, Black Trans Advocacy, & National Black Justice Coalition, p. 16. http://www.transequality.org/sites/default/files/docs/usts/USTS-Black-Respondents-Report.pdf .
12. Op. cit.
13. (n.a.)” Introduction: Stalin’s Gulag” Gulag: Soviet Forced Labor Camps and the Struggle for Freedom (accessed October 5, 2017) http://gulaghistory.org/nps/onlineexhibit/stalin/.

14. Robert F. Worth. “Iran Arrests Dissidents, Sites Report” New York Times (December 28, 2009, accessed October 5, 2017) http://www.nytimes.com/2009/12/29/world/middleeast/29iran.html.
15. Vladimir Hernandez “Argentina marks ‘Night of the Pencils” BBC News (September 16, 2011, accessed October 5, 2017) http://www.bbc.com/news/world-latin-america-14910859.
16. Adam Taylor. “How a transgender Chechen escaped Russia and found asylum in the United States” Washington Post (September 1, 2017, accessed October 5, 2017) https://www.washingtonpost.com/world/europe/a-transgender-chechen-woman-and-her-plea-for-asylum-in-america/2017/09/01/0edc5bd6-8916-11e7-96a7-d178cf3524eb_story.html?utm_term=.76604fabcc44.
17. Teo Armus. “Dozens of LGBTQ People Reportedly Arrested in Azerbaijan” NBC News (September 26, 2017, accessed October 5, 2017) https://www.nbcnews.com/feature/nbc-out/dozens-lgbtq-people-reportedly-arrested-azerbaijan-n804801.
18. “U.S. Statement as delivered by Jason Mack, Human Rights Council, 36th Session, Geneva, September 29, 2017” (accessed October 4, 2017) https://geneva.usmission.gov/2017/10/03/u-s-explanation-of-vote-resolution-on-the-question-of-the-death-penalty/.
19. Multiple resources at (n.a.) “Issues/ Police, Jails & Prisons” National Center for Transgende4er Equality (NCTE, accessed October 5, 2017) http://www.transequality.org/issues/police-jails-prisons.
20. Jenna Johnson. “Trump says ‘torture works,’ backs waterboarding and ‘much worse’” Washington Post (February 17, 2016, accessed October 5, 2017) https://www.washingtonpost.com/politics/trump-says-torture-works-backs-waterboarding-and-much-worse/2016/02/17/4c9277be-d59c-11e5-b195-2e29a4e13425_story.html?utm_term=.fb01aaccf05a.
21. Nick Duffy. “US government defends voting against UN resolution on gay death penalty” Pink News (October 4, 2017, 12:11 pm, accessed October 4, 2017) http://www.pinknews.co.uk/2017/10/04/us-government-defends-voting-against-un-resolution-on-gay-death-penalty/?utm_source=Facebook&utm_medium=PNFB&utm_content=ND.
22. Somak Ghoshal. “It’s Hardly Surprising That India Has No Problem With Death Penalty For LGBTQ People” Huffington Post (April 10, 2017, accessed October 5, 2017) http://www.huffingtonpost.in/2017/10/04/its-hardly-surprising-that-india-has-no-problem-with-death-penalty-for-lgbtq-people_a_23231962/?utm_hp_ref=in-homepage.
23. “Trump’s record of action against transgender people” National Center for Transgender Equality (accessed October 4, 2017) http://www.transequality.org/the-discrimination-administration?utm_content=buffer0637f&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer.
24. Dan Avery. “Mississippi’s HB 1523 Is the Most Sweeping Anti-LGBT Law In America. And It Takes Effect Friday” NewNowNext (October 2, 2017, accessed October 5, 2017) http://www.newnownext.com/hb-1523-law-lgbt-discrimination/10/2017/?fb_ref=fbshare_web.
25. Robert A. Gibson. “The Negro Holocaust: Lynching and Race Riots in the United States, 1880-1950” Yale Teacher’s Insitute (accessed October 5, 2017) http://teachersinstitute.yale.edu/curriculum/units/1979/2/79.02.04.x.html.