Conceptualizing Private Violence against Sexual Minorities as Gendered Violence: An International and Comparative Law Perspective

Abstract

I. INTRODUCTION To the extent that violence against women and sexual minorities(1) is predicated upon assumptions of a polar construction of gender,(2) in which nonconformity with role expectations is enforced through violent and non-violent means, it is possible to speak of violence against both groups as rooted in a system of male dominance.(3) Understanding the commonality of the gendered nature of violence against the two groups can assist in formulating a response under international and national law to violence against both women and sexual minorities that reflects the common gendered societal assumptions and mechanisms which foster such violence. Indeed, this Article's central thesis is that oppression based on sexual minority status is, to a great extent, oppression. Moreover, to the extent that violence against both groups reflects societal assumptions regarding appropriate roles, violence against both groups is frequently committed by societal actors other than the state as narrowly defined. In 1993, Dorothy Thomas and Michele Beasley published an article in the Albany Law Review.(4) That article was published in connection with the Symposium on Reconceptualizing Violence Against Women by Intimate Partners: Critical Issues, held in March 1995 in Albany, New York. In that article, Thomas and Beasley made the important observation that [a]lthough international law is neutral in theory, in practice it interacts with gender-biased domestic laws and social structures that relegate women and men to separate spheres of existence: and public.(5) Their article examined in considerable depth the sources of the international community's reluctance to recognize domestic violence as an appropriate subject of regulation by international law,(6) as well as recent changes that have occurred in the international community's approach to this issue.(7) This Article will continue this discussion of the limits and potential of international law in addressing gendered violence by focusing on the similarities and differences between violence based on and violence based on sexual minority status, with a particular focus on gendered violence in the sphere. Part II of this Article will define the scope of the problem, demonstrating that private violence against women and violence against sexual minorities share at least two characteristics: both phenomena are global in scope and horrific in their consiquences. The distinction between the and public spheres in international and national law, and the different implications for men and women of this distinction, will also be discussed in the context of gendered violence. Part III of this Article will develop the thesis that sexual minorities are gender outlaws, subject to systematic societal violence for similar reasons that women are subject to such violence. This part of the Article will briefly summarize the anthropological and historical evidence which indicates that individuals who engage in same-gender sexual relations, or adopt transgendered identities, have generally only been penalized for doing so when their activities have violated norms of male supremacy. Part IV of this Article will then discuss a central limitation of international law in addressing gendered violence: international law's deference to national law and cultural norms. This discussion will focus on the extent to which national legal norms (as an expression of cultural norms) protect, or fail to protect, the bodily integrity of women and sexual minorities. This examination entails a discussion of the right to privacy under both national and international law, since that right can provide a limitation on the ability of the state to violate the bodily integrity of women and sexual minorities for the purpose of imposing societal norms. It also, however, entails a discussion of the historically gendered role of the right to privacy as a guarantor of male supremacy in the private world of the family. …

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