Opinion – Homosexuality is not Madness!

- Rhinehold Parbey -

The universality of human rights is incontestable. Yet sexuality remains one of the arenas where the universality of human rights has come under the most sustained attack. Many people, including even governments, often seek to erect protective barriers of cultural justifications to evade their internationally recognized rights obligations. This phenomenon appears to be gaining roots in Ghana when the issue of homosexuality is considered. Today, unsurprisingly in Ghana, opinions are sharply divided along the lines of human rights and cultural perspectives. The cultural proponents appear to be arguing that homosexuality is unholy, unscriptural and alien to our cultural heritage. The human right activists, on the other hand, postulate that homosexuals are human beings like any other person and must therefore be accorded the same rights deservedly of being part of the human race. The focus of this article therefore is to assess the relative strengths of each position in a bid to ascertain whether or not homosexuals should be given any recognition by the laws of our land.

Before I start, there are few observations I ought to make about the nature of this issue. The issue of homosexuality touches the sensitivities of many people. Admittedly, I am bound to step on the toes of many people and to all those who may be offended by this article, I would want to offer my unreserved apology. But trust me, this issue can be expected to remain a contested area as sexuality increasingly becomes a site of struggle between the culturalist and human rights forces, both within and across cultures. Therefore, whilst remaining true to my ideals of being a human rights advocate, in critically analysing the issues, I do not intend to impose my ideas on anyone. Neither is it my intention to persuade anyone to abandon his/her dogmatic position. It is however my hope that this article will contribute to the debate towards finding a lasting and enduring solution to the issue that continues to hang around our necks like albatross. In supporting my position, I am proposing to give somewhat more detailed reasons than I might otherwise have done so that those who interest themselves in this issue will understand why I take a different posture in relation to this matter. For convenience, I will in this article use the terms, culturalists and human rights activists, to embrace those against and for gay rights respectively. The terms gay and homosexuals will be used interchangeably to represent persons who have sexual desire for those of the same sex as themselves.

According to Immanuel Kant, a German Philosopher, homosexuality is ‘contrary to the ends of humanity; for the end of humanity in relation to sexuality is to preserve the [human] species without debasing it’. This view has roots in religion as both Christianity and Islamic religion frown on homosexuality. For instance, it is condemned as abomination in the Old Testament and as unnatural in the New Testament.

Writing on the Ghanaian culture, Salm and Falola observed that many Ghanaians recognise the centrality of the spiritual nature of all elements of the universe. She supported her position by stating that “People even preach on public buses and many of the passengers join in to what quickly becomes a call-and-response prayer session”. In Ghana therefore, atheists are very rare and one who professes no faith in a highest being is looked at with great scepticism. Relatedly, religion defines our culture and culture gives meaning to every aspect of the individual’s life. A major social implication of this is that almost everything has a spiritual meaning. In view of this backdrop, perhaps it is little surprising that in Ghana, church leaders are increasingly joining the anti-gay campaign chanting messages of non-recognition of gay or ‘animal’ rights. Many of these leaders resort to the story of Sodom and Gomorrah, to show that God wanted the sins of the Sodomites to be extirpated and that God would bring disaster on any community that allows such a practice.

Thus, in attempting to restore ‘traditional values’ in public policy, the culturalists position has been premised on the view that elevating non-discrimination on the grounds of sexual orientation to a fundamental right could lead to destruction of the human race. In view of this, the proponents of the culturalists perspective anchor their position by raising issues around procreation and the destruction of the family unit, in particular, and society in general. It is also said that homosexuality is ‘unnatural’ and homosexuals are child molesters and disease carriers who are part of a grand scheme of satanic plot to destroy civilisation. To the culturalist a family comprises of a married man and woman and their biological children. The culturalist appears to be further grounding their argument by indicating that even if homosexuality has been in existence since humans begun documenting human history, its lack of recognition by the framers of our Constitution to include the unconstitutionality of discrimination against citizens on the basis of sexual preference, only goes to confirm its ‘evil’ nature. Arguments such as these, for instance, often portray gay people as privileged ‘playboys’ and sex maniacs who have chosen this activity as a lifestyle and therefore do not need protections.

Although remarkably out of touch with the human rights developments, these arguments have a long history at international circles. For instance, at the UN General Assembly Special Session in June 2000 delegates from Senegal, Syria, Nicaragua, and Kuwait rejected a proposal to prohibit discrimination on the basis of sexual orientation as a human right. Additionally, in June 2003, the US Supreme Court ruled that anti-gay sodomy laws violate the US constitution's right to privacy. Justice Anthony Kennedy, writing for the majority, ruled that the state cannot single out gay people for harassment and discriminatory treatment simply because of "moral disapproval" of homosexuality. Despite these majority caveats, Justice Antonia Scalia argued the opposite in his dissent:

"Today's opinion dismantles the structure of constitutional law that has permitted a distinction between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned".

Nonetheless, the gay right movement appears to be also gathering support by arguing that homosexuality is a characteristic with which certain people are attached in the early childhood or even with birth. There is empirical evidence to support the view that gays do not have a choice over their homosexuality as heterosexuals do not have a choice over their heterosexuality. Hence, gayness is a condition over which they do not have control, just as no one has control over his or her origin, ethnicity, race, outer appearance, or the class he or she is born in. There is a growing opinion internationally that sexual orientation is a fundamental aspect of human personality. In this regard, whether a person’s sexual orientation involves an emotional attraction to people of the same sex or another sex or both sexes, it is considered to be a natural part of a person’s make-up. Essentially, these underpin the human right perspectives.

As a heterosexual, Christian and a Ghanaian, the anti-gay rights movement has always sounded and appeared plausible and incontestable given its biblical and cultural interpretation. This, however, does not foreclose the prospect of introducing novel elements to the inherited biblical norms and cultural traditions particularly in the contest of our interactions with other traditions. Highlighting the changing nature of society, Professor Gyekye, in his book Tradition and Modernity, observed:

No human culture is absolutely unchanging, totally, refusing to take advantage of possible benefits that often accompany encounters between cultures. Absolute changelessness is therefore impossible and cannot be considered a necessary condition of any human society.

Owing to the culturalist perspective of gay people bringing destruction to the human race, for instance, perhaps, it is easy for the above quotation to be undermined on the basis that it would not offer any benefit to our society. This position cannot be entirely accurate as evidence abounds regarding the positive contribution that gay people are making all over the globe. In fact, empirical research on adult sexual orientation and molestation of children has shown that gay men are not more likely to molest children than heterosexual men. What is instructive to note in this debate is the inherent fear of the unknown. The invocation of cultural rights appears to be gaining grounds because we feel threatened that we would be deprived of our cherished values. This has unfortunately led to labelling this phase of development as ‘foreign’ and a sustained prejudice against gay people. However, studies of interpersonal prejudice, including prejudice against homosexuals, increasingly portray that prejudice is reduced when members of the majority group have knowing contact with the minority group. This position reminds me of the struggle towards the emancipation of the black people. Like the homosexuals, there was an era where black people’s rights were debased and denied on the basis of a characteristic we did not have control over: colour. We were shunned, segregated and made to feel inferior. The ascension of Obama to the highest office in the United States only resounded with echoes of Martin Luther Kings speech, “I have a Dream”, to portray to the world at large how far we have come as black people: ... One hundred years later, the life of the negro is still sadly crippled by the menacles of segregation and the chains of discrimination…Now is the time to make justice a reality for all of God’s children. I have a dream that my four little children will one day live in a nation where they will not be judged by the colour of their skin but by the content of their character. Clearly, the acceptance and tolerance of the black people, who were also the subject of prejudice, was not without a struggle. The reader must therefore be reminded that this debate also epitomises another phase of our development to ensure that homosexuals also enjoy their rights as God’s children. Thus, although the critical dialogue regarding the issue of homosexuality is appreciated, in all humility, the culturalist position suggests a certain level of incomplete understanding of the complex issues that sexuality brings to the table. For this reason, it is apposite that each criticism against gay rights is objectively analysed in turn.

Firstly, interference with the rights of homosexuals can only be considered justified if the interference is in accordance with the law, have an aim which is legitimate, and must be “necessary in a democratic society” for the aforesaid aim.

Section 104 (1) (b) of the Criminal Code states: “Whosoever has an unnatural carnal knowledge of any person of 16 years or over with his consent is guilty of a misdemeanour", while (1) (a) of the same code, reference to sodomy, states, "Whoever has unnatural carnal knowledge of any person of the age 16 or over without his consent shall be liable on conviction to imprisonment for a term of not less than five years and not more than twenty-five years.

Article 17 (1) and (2) of the Ghanaian Constitution also state: “All persons shall be equal before the law [and] a person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status”.

Clearly, the literal position of our jurisprudence appears to betray the human right cause. Our Constitution is very reticent on this matter paving the way for the flag of criminality to be hoisted in celebration of its abhorrence. By our Constitution and the Criminal Code, in my view, this matter begs for no contest. In fact, although hesitant, I am compelled to say that one engages in homosexuality today in Ghana at his/her own peril. But the reticence of our legal jurisprudence on matters of sexuality is not peculiar to Ghana. What is worthy of note is that the study of human sexuality was at its infantile stage when the Universal Declaration of Human Rights (UDHR) was adopted by the United Nations in 1948. In particular, little was known about sexual orientation and therefore the campaigning for equal rights for homosexuals was not to emerge for decades. Worse of it all, the UDHR made no provision in accommodating societal changes that would lead to its denunciation.

This international dimension brings to fore the legitimate aim of the framers of our constitution. The absence of sexual orientation, in my view, was to give legitimacy to our Constitution given that laws must reflect the values of the people. As established above, at the drafting stages of these legal documents, homosexuality was an unknown concept in the human sexuality discourse and therefore needed no mention, let alone protection. But the essential question, however, at this stage is whether or not interference is “necessary in a democratic society”. It is submitted that we should not be seduced into thinking that this is a simple issue that can be abated by a cultural prescription. This requires an intense factual investigation into the adequacy of the cultural position. Upon a critical evaluation, it is difficult to accept that the cultural angle is able to topple the human rights element on the basis of the following.

Firstly, democracy and human rights are two good pals and in fact sometimes they tend to be synonymous. Democracy recognises differences and does not respond by prescribing acceptance but tolerance of differences within our society. Christians, for example, have always practised their religion alongside Muslims. Therefore one may not necessarily accept certain opinions but one is somehow compelled to tolerate dissenting views within the society. Stretching this argument further, one is not expected to accept people who are gay but democracy dictates tolerance of differences in sexual orientation. To this end, we should not celebrate differences by sacrificing other people’s enjoyment of their rights on the altar of non-acceptance. Today, the lack of homogeneity in our country is being given a further boost by this issue of homosexuality. Homosexuality in Ghana is no longer an abstract hypothetical. Hundreds, and perhaps thousands, of Ghanaian gay people are developing the courage to come out to be identified. The reference to “unnatural” in the criminal code as the basis for lack of tolerance of, and therefore discrimination against, gay people, to me, is a bit baffling. This position appears to be garnished with fundamental inadequacies. The Oxford English Dictionary defines “unnatural” as:

i) Contrary to the ordinary course of nature, abnormal (ii) (of feelings or behaviour) contrary to what is seen as normal, conventional, or acceptable (iii) not existing in nature; artificial For the purposes of this discussion I will disregard the definitions in (1) and (3). I would consider (2) because it specifically talks about “feelings” and “behaviour” which seem to be the subject of our interrogation here. According to (2), for a feeling or behaviour to be unnatural, it must be contrary to what is seen as:

Normal; OR Conventional; OR Acceptable. Consistent with the aforementioned, satisfaction of any of the three elements above would suffice in relation to labelling the behaviour or feeling as unnatural. It would appear from the current disposition that, a feeling of being in a relationship with a person of the same gender would neither be conventional nor acceptable in Ghana. But can we entertain the argument that the feeling is contrary to “normality?” Currently, research from the medical field suggests that homosexuality could be biologically determined. Evidence also suggests that there is no inherent association between homosexuality and psychopathology. All this has led to mental health professionals to conclude that homosexuality is simply one normal variant of sexual identity. If this biological-determinism angle is to be accepted, and ought to be so given our reliance on science in responding to biological issues, then how legitimate is our conclusion that a gay person’s feelings towards a person of the same-sex are “contrary to what is seen as normal?” Indeed, if one is genetically predisposed to gravitate towards a person of the same sex, certainly the person’s behaviour would be in conformity with his/her feelings.

Some people may still hold the view that perhaps these people need some rehabilitation sessions to attune them to our acceptable norms. There are two issues with this: first, there is no reliable scientific evidence regarding the efficacy of such therapies; and secondly, it is a fact that at every level of plant, animal and human life, inexplicable biological differences occur, sometimes culminating in abnormalities. And for the same reason that discrimination against persons on the basis of other aspects of their biological deficiencies is illegal, homosexuals, even if accepted that there is a certain level of deficit in their make up, should not be discriminated against. Secondly, the citation of the scriptures to kick against the rights of another human being is regrettably unfortunate. Whilst I do not want to be seen as undermining the authority of the religious views in this debate, I am tempted to hold the view that this position emits a certain level of judgmentalism and hypocrisy. As a Christian I have always been guided by this verse, “thy shall not judge”. I raise this within the reference of divorce and abortion. I have a certain level of deficit when it comes to the Quran but can state, with authority, that the bible does not approve of abortion and divorce. However these two issues receive protection in the country’s Constitution. Let us not forget that the protection of the rights to abort was also met with stiff opposition from certain religious bodies. We are also made to understand that the essence of a relationship is to procreate and sexual acts must be done through ‘natural’ route. In view of this those who by choice engage in sexual acts through the ‘unnatural’ route are contributing to the demise of the human raise. Nonetheless, behind closed doors, and by choice, how many of us, including heterosexual married couple, had attempted or actually engaged in sexual acts through the “unnatural” route? Today, what was historically and contemporaneously perceived as ‘abnormal’ and ‘unnatural’ is a subject of constant daily happenings and experiments. Arguably, if most of us are guilty of these non-biblically sanctioned vices, then wherein lies the justification for the victimisation of, and discrimination, against gay people?

Thirdly, the argument regarding the sacred nature of the family appears to be out of touch with the contemporary demographic reality of Ghanaian families. This view is premised on reducing gay couples to "sex partners". It must be said with all potency, but with humility, that this position is offensive in the same way that describing a husband and wife as nothing more than sex partners. In a country where there are many informal arrangements for other family members to assume parental responsibilities for other people’s children, it is submitted that this is again a departure from the real issues. In fact, gay people have families and aspire to have stronger sense of family and committed, loving relationships in their lives. Therefore, limiting the protections, benefits, and obligations of sexuality to opposite-sex couples is a violation of the basic premise upon which individual liberty and equality were built.

Finally, the labelling of homosexuality as ‘foreign’ and the vehemence of the culturalist resistance along this line only perpetuates the inferiority specie argument which ensured that black people were confined to the periphery. In fact, I find no reason to doubt that the human rights crusade has some international dimension to it. I also accept that the position taken by the culturalist has an aim which is legitimate. However, it is inconsistent in developmental analysis to accept the view that everything ‘foreign’ is an affront to our tradition and culture. It is worth emphasising that:

“For many people in the Western societies and most others…find such behaviour abhorrent, even threatening; and while, in a liberal society, they may be content to leave such people alone, they draw the line at being told they cannot avoid their company in the work place or in renting housing to them” (Sullivan, cited in Primoratz, 1999: 126).

The truth be told but the fact that we are the twitter, facebook, bebo generation, where there is a constant rattling and interaction of different cultures condensing in greater awareness of our sexuality, cannot be trumpeted enough. Therefore, if we uncritically accept every norm and label each phase of change as ‘foreign’, there is the danger to collapse the current and future generation rights into a single ‘cultural’ perspective.

Following the aforementioned reasons, any interference in the rights of the gay person is a clear violation of their fundamental human rights and therefore unjustifiable in a democratic state like ours. In line with this, a new trend is developing internationally which is underpinned by extensive and increasingly comprehensive body of case law. This trend has served to illuminate and consolidate the principle of non-discrimination on grounds of sexual orientation requiring not only the repeal of discriminatory criminal laws but also the adoption of proactive antidiscrimination measures. To this end, the lack of explicit reference to a right to be free from discrimination on grounds of sexual orientation has meant a reliance on progressive “reading into” existing human rights provisions, typically the right to privacy and freedom from discrimination on grounds of sex. In this regard, I am helpfully supported by a case of Toonen v Australia. In Toonen, the Human Rights Committee, innovatively interpreted the principle of non-discrimination on grounds of “sex” as including “sexual orientation”. Similarly, our Constitution does not have the word “sex” but “gender”. Arguably, “sex” and “gender” are substitutable. In line with our Treaty obligations and democratic principles, it is likely to be a banter struggle to escape such an interpretation given Ghanaians readiness to recite our democratic credentials at any given forum. In writing this piece, I am aware that I will attract a lot of tags but I must say cowardice is not a buzz word when charting a just course and all well meaning Ghanaians, irrespective of your sexual orientation, must be bold to untangle the web that surround this issue. We hail people like, Martin Luther King, but they received enormous support from some white people during their time. By this, I can readily recall a story told by Martin Luther King when he was stabbed:

“…While it should not matter, I would like to mention that I’m a WHITE girl. I read in the paper of your misfortune, and your suffering. And I read that if you had sneezed, you would have died. I’m simply writing to you to say that I’m so happy that you didn’t sneeze”

Therefore, you do not have to be a gay person to support the human rights course. In my candid considered opinion, whilst rights claims based on purposive reading into existing laws can achieve important victories, it may prove insufficient due to the subjective elements in such approach. Gay people are also human beings whose rights can never, and must never, be subsumed into others. It is incumbent, therefore, on our Parliamentarians, who are representatives of the various groups within our society to debate the issue objectively and explicitly come up with laws to protect the homosexuals or reaffirm the existing laws. From the human rights position, Article 17 (4) (d) helpfully states: “Nothing in this article shall prevent Parliament from enacting laws that are reasonably necessary to provide for making different provision for different communities having regard to their special circumstances not being provision which is inconsistent with the spirit of this Constitution”.

Clearly, homosexuals can be viewed as constituting a community for the Oxford Dictionary defines a “community” as: a group of people having a religion, race, profession, or other characteristic in common”. Deductively, as the above analysis has brought to fore, gay people represent a group of people with certain distinct characteristics and need protection as any other human being. The heretofore lack of protection only reinforces prejudice and discrimination against gay people.

The story line so far includes these words: madness, revolting, despicable, evils, incessant oppression of human beings on the basis of a conflict between our cherished values and human rights. The cultural judgment is apparently easy to call from an armchair analysis by invoking insults. Similarly, due to our background it is also relatively easy to label the human rights angle as purely academic. However, our society is made up of people with different characteristics. These differences must be celebrated by invoking tolerance but not necessarily acceptance. The challenge inherent in our refusal to tolerate people whose sexual orientation are different from ours becomes more acute when one is involved in and faced with a practical dilemma: what will you do to your son, daughter or a close relative if it is genetically proven that such a person is gay? How would you feel if such a person is prosecuted and subsequently incarcerated on the basis of expressing something he/she has no control over? Fellow Ghanaians, these questions beg for no middle positions. Therefore, after a careful appraisal of the issues, it is my considered, humble and apologetic opinion that cultural norms recede to flippancy when they collide with human rights as echoed by the current UN Secretary General, Mr Ban: “Let there be no confusion: where there is tension between cultural attitudes and universal human rights, universal human rights must carry the day.”

Rhinehold Parbey The author is an Advanced Social Work Practitioner, Human Rights Activist and Student Barrister at BPP Law School, UK. Comments could be forwarded to the author via email: rhineholdp@yahoo.co.uk