Sexual rights and marriage law in Japan, Zimbabwe, and the United States

¶ … sexual rights"? This is a questions that might seems simple to answer at first but really opens a quagmire of debate and confusions. What might be key to the sexual rights of one Country, might be a moot point in another. Before attempting to define "sexual rights," it is important to understand the meaning of the term "rights" as I will discuss them within this essay. Interpretation of rights can be thought of as fitting into one of three different categories. The first category of "rights" can be thought of as the demand for legal and political equality of all citizens within a state. Thus all the laws within that given state should lead to equal treatment to any and all individuals within the state. The second way of approaching "rights" would be from the perspective of what might be deemed "specific rights." This refers to a demand by a specific minority group to be assured laws and protection from the majority due to their apparent minority. The last way of comprehending rights is that of hegemonic articulation, whereby a specific demand appears out of the specific needs of a specific group but does so as part of a political battle that is devoted to more universal projects or goals. Thus, it is clear that the term "rights" may have different meanings relative to the individual or group being referred to and on which context.

For the purpose of this essay, I will look at how "sexual rights" are used in relation to homosexual marriage to negate the rights of Lesbian, Gay and Bisexual (LGB) identified individuals. Sexual rights for this essay are defined by me as: "The right to sexual autonomy in the sex they feel most correctly identifies themselves; the right to sexual partner preference, regardless of sexual orientation and gender identity. Sexual Rights include the right to information; the right to safety from discrimination; and the right to corporal autonomy. Also, the right for all individuals, regardless of age, gender identity, sexual orientation, or health status, to make choices on their own sexuality and reproductive rights. These rights include the right to have access to information and services necessary to support and optimize health, and the right to pursue a safe, satisfying, and pleasurable sexual life."

This definition however, runs into problems when applied transnationally. For the purpose of this essay, I will look at how the written laws of a country as they relate to marriage work to limit and negate the sexual rights of the LGB individual within the three aforementioned communities. This essay will also examine how these issues surrounding marriage limit the sexual rights of queer individuals as defined above in three different countries; Japan, Zimbabwe and the United States.

Japan

In Japan, same sex relationships are not socially recognized despite the fact that homosexuality is legal. The traditional religions in Japan do not have precise prohibitions in opposition to homosexuality. The first criminalization of sodomy in Japan was in the early 1870s after the introduction of western culture. This law was then repealed a few years later (Ottosson 36). Following this, Japan never introduced a law prohibiting homosexuality. Thus sex between two consenting adults, regardless of sexual orientation and/or gender, and within the private sphere, is legal. However, the civil rights laws of Japan do not include protection from discrimination on grounds of gender identity or sexual orientation (Ottosson 36). Therefore, an LGB individual can be denied services such as employment or social amenities on grounds of being gay. Since this descrimintation does not defy any written civil rights, LGB individuals is not supported by the law if they were to try and make a criminal court case (Ottosson 45). Although the rights of these individuals are not explicitly limited by a written law, they are effectively limited by the lack of written laws to protect these individuals.

Another issue that was that is still under discussion is that of same-sex marriages. Currently, only heterosexual marriages are recognized and can have a marriage license issued. However, there are reports that the justice ministry has plans to approve same-sex marriages for individuals who have citizenship in countries that allow gay marriage (Ottosson 48). This highlights a very large concern when it comes to homosexual rights as written in to law in Japan. If you are a homosexual who has the socioeconomic and political connections to gain dual citizenship in a country such as Canada where same sex marriage is legal, than you are allowed to have your same sex union recognized in Japan. However, if you do not have these connections, your same-sex union is not recognized under the laws of marriage. Even though homosexuality is not explicitly illegal, certain rights and freedoms that I outlined in my definition of sexual rights are not applicable in Japan. What it seems is not being taken into account with my definition as it applies to Japan, is how sexual rights as they apply to a queer identity intersect with money and political connections.

Zimbabwe

The last country under consideration is Zimbabwe. Many laws surround sexual rights date back to the Rhodesian and British colonial rule. The LGB rights in this country are subjugated by the fact that male homosexuality is illegal. Unlike Japan and American who have more recently passed laws to create rights for the LGB community, the government in Zimbabwe has carried out campaigns opposing homosexuality in both women and men (Mandigo 1). The common law prohibits such acts as sodomy and any that is categorized as "unnatural offence" (Mandigo 1). This law defines sodomy as an "unlawful and intentional sexual relations between two human males" and an unnatural offence is defined as "unlawful and intentional commission of an unnatural sexual act by one person with another person" (Mandigo 1). There have been several attempts by the government to harass gay people in the country the creation and implementation of laws that further limit their rights. These laws include the prohibition of queer identified individual(s) from importing, distributing, publishing, or keeping for sale of any publication which is considered undesirable, meaning that has a queer positive focus. As well, laws have been passed that make any actions identified as "homosexual" a criminal offence. These homosexual acts have grown to include two persons of the same sex that hug, hold hands, or kiss. These laws have come to include these activities more recently, where as in years past, these laws were limited to sexual activity. The laws in Zimbabwe are only becoming stricter and limiting of queer rights and freedom, criminalizing any act that would be regarded by a reasonable person as indecent (Engelke, 300).

The passing of such tough laws have been driven by the current president of Zimbabwe, Robert Mugabe, who has been very active in campaigning against LGB rights and has publicly spoken against homosexuality, despite worldwide criticisms for his comments. He seems to be using the LGB community as a scape goat, blaming the problems within the country on the LGB people (Mandigo 1). This has led to these individuals being threatened by violence and even suicide attempts are regular among the LGB community (Engelke 299; Mandigo 1). It is apparent that the queer identified in Zimbabwe has not yet been socially accepted enough to even begin to look at the ways marriage laws discriminate against them. The most basic rights that are assumed when looking at the discrimination of LGB community and what are thought of as given human rights seen through a North American lense do not exist. The most basic laws of protection from active discrimination in public do not exist. Thus, to try and apply our notion of equal marriage rights within this society would be like trying to run before learning to walk. There are more pressing rights that need to be addressed, such as changing the laws that make ____ punishable by death for the LGB people who live within Zimbabwe before marital status and how the laws surrounding marriage are oppressive can begin to be examined.

From the previous three examples, it is clear that there is disparity in the application of sexual rights as they relate to marriage in different countries. For every border crossed there must be a new intersectional cross of social and political understanding to create a workable definition of sexual rights. Therefore, it is an exercise in calculating pie to the last digit when trying to create a transnational definition of sexual rights as they relate to LGB marriage: impossible. When LGB rights related to marriage in one country (United States) leads to a gray area and difficulty adoption, while in another it leads possible death (Zimbabwe), you are comparing apples and blood. They might both be red, but I would only recommend eating one for breakfast.

These definitions of what are and are not "sexual rights" can be confusing at times. For instance, an LGB individual from Canada where homosexual marriage is legal might not understand how homosexual relationships are legal in Japan, yet marriage is not. This does not even begin to scratch the surface of the issues which might arise when say, a Canadian LGB identified individual goes to its neighbours the U.S., and cannot understand why their partner is no longer considered their marital partner in the State to which they move. Further complicating the matter is the fact that this individual might try to demand rights they feel they are entitled to, having come from a country that allows same sex marriage. The resident government may not be willing to allow such acts to be entertained within its boundaries. Another delicate part in applying this definition is in a case where the law allows all practices related to LGB but does not provide for their protection. This makes such individuals vulnerable to discrimination and unfair treatment both in the public and private sector. A good example is Japan where homosexuality is allowed but there are no anti-discrimination laws put in place to protect such individuals.

Another factor that has led to the increased challenge in transnational application of sexual rights is the fact that most international organizations do not provide a proper guideline on what constitutes such rights thus there are no universally binding laws with regard to sexual rights. This gives each country or territory a chance to formulate its own definition of sexual rights and implement them without the fear of being subjected to any ruling. This has led to gross abuse of the rights of such individuals, such as is the case in Zimbabwe, but these individuals have no concrete body to forward their claims to since they have no legislations to defend them.

Conclusion

The case presented above clearly indicates that there is a dilemma in the application of sexual rights transnationally. This cannot necessarily be solved as many foreign bodies try to do by waving the magic "We must talk about homosexual rights within the HIV / AIDS crisis" wand. The antiviral fairy cannot sprinkle her chemically concocted T-cell enhancing dust into the eyes of law makers and make a universally acceptable law around LGB marriage. While it is not disputed that many aspects of social life may appear challenged on the international scene when homosexual marriage is presented as a matter of "rights," perhaps emphasizing 'the equal' aspect of rights might make the notion a more acceptable one on an international stage.