There is a manifest increase in the global acceptance of lesbian, gay, bisexual and transgender (LGBT) as a lifestyle and also as the subject of human rights worthy of being safeguarded. From the classification of homosexuality as a mental disorder in 1952 to the passing of a resolution on the rights of LGBT by the United Nations Human Rights Council in 2011, more and more individuals and nations have begun to accept and/or tolerate unconventional sexual orientation and gender identity. Between 2008 and 2011, Fiji, Rwanda and Sierra Leone switched from opposing LGBT rights to supporting them at the UN and this growth in support is also manifest in the statement of Charles Radcliffe, viz:
“I think we have seen the balance of opinion amongst States really shifting significantly in recent years. Some 30 countries have decriminalized homosexuality in the last two decades or so.”
The clamour for recognition and protection of LGBT rights has entered into the sporting sphere. Since sport has historically been an effective, albeit sometimes unwilling, campaign tool, LGBT advocates have seized the opportunity offered by international sporting events, as a platform for being heard. Similarly, sports administrators have used their sport to promote social causes. This is not implausible; after all, one of the fundamental principles of Olympism is for sport to serve as a tool for promoting a peaceful society concerned with the preservation of human dignity.
During the 2011 FIFA Women’s World Cup, the coach of the Nigerian team, Eucharia Uche stated in a widely reported New York Times interview that lesbianism had been eradicated from the team and that homosexuality was ‘dirty’ as well as ‘spiritually and morally very wrong’. In response, the FIFA head of women’s competition, Tatjana Haenni criticised those comments, insisting that FIFA was against all forms of discrimination. In present day, as Russia prepares to host the Sochi 2014 Winter Olympics, there has been pressure because Russia, like Nigeria, has what is popularly referred to as anti-gay legislation. LGBT advocates are pushing for a rescission of the legislation, a boycott of the Games or reassignment of hosting rights.
Recognising sport as a veritable tool for promoting societal values and social change, this article takes a critical look at the use of sport as a tool for advocating the LGBT rights, taking cognisance of the fact that sport is apolitical and the debate that LGBT rights are yet to be accorded recognition on the scale of universal human rights.
Sports and Human Rights
Since the Beijing 2008 Olympics, the Human Rights Watch group has documented human rights abuses linked to sports and the hosting of international sporting events. These include forced evictions, abuses of migrant workers, media censorship, and a clampdown on civil society during China’s preparations for the 2008 Olympics; Saudi Arabia’s discrimination against women is sports, evidenced by unavailability of sporting infrastructure for women and the fact that the Kingdom has never sent a female athlete to the Olympics; Russia’s harassment of activists who are critical of the authorities’ preparations for the Sochi 2014 Winter Olympic Games, cases of migrant workers working on construction sites in Sochi who have been denied contracts and wages and who faced retaliation for protesting these violations, the authorities’ unlawful expropriations and forced evictions to make way for Olympic venues and related infrastructure and government’s failure to provide home owners whose properties are expropriated for Olympics-related projects with fair compensation or an effective mechanism to challenge the evictions.
Historically, sport has been an avenue for challenging human rights abuses and canvassing their protection. The potential of sport as a means of advancing human rights causes can be gleaned from the vast audience figures that major international sporting events rake up. The competence of sport as a means of advancing human rights causes can be gleaned from the rules and principles of sporting organisations; for instance, the Olympic Charter seeks to place sport at the service of the harmonious development of humankind, with a view to promoting a peaceful society concerned with the preservation of human dignity, as well as hinder any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise. Also, even at the comity of nations, in 2011 the Human Rights Council of the United Nations adopted a resolution urging member States to “prevent, combat, and address all manifestations of racism, racial discrimination, xenophobia and related intolerance in the context of sporting events”. Sporting tenets such as fairness and equality also form the bedrock of human rights.
Incidents such as the Black Power/Human Rights Salute in the Mexico 1968 Olympics and the Australian aborigines’ protest at the Sydney 2000 Olympics are examples of sporting events being used to amplify protests and human rights advocacy. There have also been protest against and calls for boycott of various sporting events recently hosted by nations such as Azerbaijan, Bahrain and Ukraine, due to their poor human rights records. As long as sports and human rights continue to share common ideals, the relationship is bound to continue.
The Issue with LGBT Rights
As highlighted earlier, LGBT rights have grown in recognition over the years. Apart from socio-political recognition, there is also growing recognition for LGBT in the sporting landscape – from sports administrations canvassing sporting equality for people with LGBT orientation to sportspersons openly declaring such orientation.
That sport should be used to promote human rights and prevent discrimination is apposite. However, the question as to what type of ‘rights’ sports can and should promote is in issue. In other words, what is the basis for the support for LGBT rights in sporting circles and by sports governing bodies? Are LGBT rights recognised as part of the universal human rights which sport seeks to promote?
The Universal Declaration of Human Rights (UDHR) and the treaties that make up the International Bill of Human Rights constitute the primary resource for universally accepted basic human rights. Universal human rights and freedoms are elaborately spelt out therein, including the rights to dignity of the human person, to freedom of opinion and expression, to freedom of assembly and association, to freedom of thought, conscience and religion, etc. It even allows the freedom to change orientation such as religion and belief, as well as the freedom to impart ideas or orientation on others. Nonetheless, it is pertinent to note that these rights ascribed to individuals are not without limitations, specifically with regard to the rights and freedoms of other individuals as well as for the greater good of society at large. Specifically, the UDHR provides that:
“ In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”
It is inherent from the above that the just requirement of morality is a significant consideration in the limitation of human rights. It is a basis for legal limitations such as those regarding unlawful acquisition of property through stealing and the expression of nudity in many jurisdictions, etc. However, it is obvious that society is losing touch with this moral requirement and it is as a result of this that advocates seek to smuggle LGBT rights into reckoning as a basic human right. The UDHR states that “men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family”. These wordings, coupled with the recognition of the ‘family’ as the “natural and fundamental” unit of society entitled to protection by society and the State can hardly be inflated to accommodate the ‘unnatural’ sexual orientation and gender identity that LGBT contains.
Besides the issue of morality, there is the need to consider the legal competence upon which sport may be used to promote LGBT rights. In addition to the fact that there is no indication of LGBT rights being amongst the universally protected rights in the UDHR presently and certainly not at the time of enactment, it is instructive to note that at the United Nations level, the General Assembly has not officially recognised LGBT rights as a basic human right. This is in spite of the open support by prominent political figures such as the UN Secretary-General, Ban Ki-moon and American President, Barack Obama. Presently, amongst UN member States, the balance of opinion is basically divided between the 94 States that back the 2008 declaration and the 2011 Human Rights Council resolution in favour of LGBT rights and the 54 States backing the 2008 statement opposing LGBT rights. The apparent suggestion that the numbers favour the pro-LGBT States is perhaps whittled down upon consideration of the fact that another 46 States refrained from supporting or even opposing LGBT rights. Overall, there was inadequate support for the adoption of an official UN General Assembly resolution supporting LGBT rights.
The question then arises as to the basis or legal competence upon which sports administrators promote LGBT rights. In 2011, African political leaders were critical and defiant towards reports that the UK Prime Minister had threatened to withdraw aid from countries with anti-gay legislation. Clearly, in the absence of any legal obligation by such countries to recognise LGBT rights, aid became a tool aimed at pressuring such countries into according recognition to those perceived rights. It is a scenario where political machinery is at play. Sport is decidedly not a political tool and the Olympic Charter, for instance, prohibits all kinds of demonstration or political, religious or racial propaganda at Olympic events.
From the foregoing, it may not be untenable to contend that the canvassing for LGBT rights through sports amounts sports being used for political propaganda. If this argument is sustainable, then any implementation of calls for boycott or reassignment of hosting rights would constitute discrimination against countries that do not adopt the socio-political ideologies of those advocates. This would clearly contradict item 6 of the Fundamental Principles of Olympism highlighted earlier; it provides as follows:
“Any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement.”
The above principle which prohibits discrimination clearly protects countries as well as individuals; hence, if there is no proper basis to sanction a country for failing to protect what is a flawed perception of a human right, then it translates to political discrimination for political leaders with the backing of sports administrators to question the participation of such countries in sports and their hosting of sporting events. With the U.S., the E.U., Brazil, South Africa, Israel, Japan, South Korea amongst the pro-LGBT group, predominantly African and Asian countries form the opposition hanging on to traditional norms and values. In particular, Nigeria and the significant European exception – Russia have recently been the target of pressure from the sporting world on account of their ‘anti-gay laws’. The IOC must stay reminded of its statutory role to oppose any political or commercial abuse of sport and athletes.
In light of the fact that certain countries or regions are open to LGBT rights while others are against it indicates a difference in cultural attitudes. The UN Secretary-General, Ban Ki-moon (whose country – South Korea supports the pro-LGBT declaration) revealed his political leanings when he declared in his 2010 Human Rights Day speech that as “men and women of conscience, we reject discrimination in general, and in particular discrimination based on sexual orientation and gender identity”; and in apparent recognition of the significant opposition, he added that when there exists “tension between cultural attitudes and universal human rights, rights must carry the day”. The question that readily comes to mind is this – are LGBT rights indeed “universal human rights”?
It is perhaps in recognition of the fallible nature of the pro-LGBT rights argument that the IOC has refrained from taking a decisive stand in opposition to the anti-gay law which operates in Russia and which has been the subject of criticism and pressure. The IOC would instead be constrained to regard the pro-LGBT clamour in the context of the Sochi 2014 Games as political demonstration and propaganda, which is prohibited by the Olympic Charter.
The 1994 decision in the case of Toonen v. Australia is viewed by LGBT protagonists as a landmark. Nicholas Toonen, a resident of the island state of Tasmania, Australia brought a human rights complaint before the United Nations Human Rights Committee challenging Sections 122(a) and (c) and 123 of the Tasmanian Criminal Code, which criminalise consensual sex between adult males in private. He argued that they constituted a violation of his rights to privacy and freedom from discrimination guaranteed under Articles 17 and 26 respectively of the International Covenant on Civil and Political Rights (ICCPR). His argument was hinged on, inter alia, the position that the law does not distinguish between sexual activity in private and sexual activity in public, thus bringing private activity into the public domain; and that its enforcement results in a violation of the right to privacy since it enables the police to enter a household on the mere suspicion that two consenting adult homosexual men may be committing a criminal offence.
It is worthy of note that the Committee, in ruling in favour of Toonen, based its decision on the preservation of the right to privacy vis-a-vis the arguments highlighted above, without delving into the issue of the law being a violation of the right to freedom from discrimination. Also, in answering the question raised by the Australian government as to whether sexual orientation may be considered as a basis for freedom from discrimination under article 26, the Committee responded by stating that it “confines itself to noting, however, that in its view the reference to “sex” in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation”. In addition to deliberately refraining from hinging its decision on imputing a right to freedom from discrimination on account of sexual orientation into article 26 of the ICCPR, the conscious use of the words “confines itself to noting…that in its view” connote that the UNHRC cannot be said to have created an official UN-backed LGBT right on the strength of the decision in this case.
It would be imprudent to ignore the rising global trend in acceptance and publicity of LGBT orientation, even within countries that are opposed to same. However, the traditional and moral values of these sovereign entities should be respected both in the political and sporting contexts. Regardless of the lure of the ever-increasing scope of civil liberties, sport must stay confined to the limits core values from which it earned it peculiarity. If sport were to become a ready political tool, it would only be a matter of time before it lost its claim to self-regulation.
It would be unfair to ignore the extra-judicial harassment and abuses faced by LGBTs. Whether unconventional sexual orientation and gender identity are expressly prohibited by extant laws or merely dissuaded by societal norms and values, extra-judicial harassment and abuse of people with LGBT orientation amounts to a violation of the recognised basic human rights, such as the rights to due criminal justice procedure and/or freedom from torture, cruel, inhuman or degrading treatment or punishment.
The point must be stressed that whereas LGBT orientation should not be the basis for harassment or human right abuse, the freedom to possess, practice and/or impart such unconventional sexual orientation and gender identity are presently not accorded the status of (basic) human rights; therefore, for sports to be used to promote LGBT orientation is at worst misplaced and at best premature.
 The first edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association in 1952 classified homosexuality as a mental disorder. However, following research and studies, homosexuality was declassified in from the DSM in 1973.
 Pursuant to the resolution, the UN High Commissioner for Human Rights presented a report on Discriminatory Laws and Practices and Acts of Violence against Individuals Based on their Sexual Orientation and Gender Identity A/HRC/19/14.
 Head of Global Issues Section, Office of the High Commissioner for Human Rights.
 United Nations News Centre: http://www.un.org/apps/news/story.asp?NewsID=40743#.Ugo739JQHVw (retrieved on 13th August, 2013).
 The Olympic Charter.
 Human Rights Watch, Statement on sports and human rights at the UN Human Rights Council, http://www.hrw.org/news/2012/02/27/statement-sports-and-human-rights-un-human-rights-council (retrieved on 13th August, 2013).
 Fundamental Principles of Olympism, as contained in the Olympic Charter.
 “A world of sports free from racism, racial discrimination, xenophobia and related intolerance”, HRC resolution A/HRC/RES/13/27.
 http://en.wikipedia.org/wiki/1968_Olympics_Black_Power_salute (retrieved on 13th August, 2013).
 In April 2013, NBA player Jason Collins became acknowledged as the first openly gay athlete in a major team sport. This followed the open declaration of the likes of professional boxer, Orlando Cruz and U.S. female soccer player and Olympic Gold Medalist, Megan Rapinoe.
 Adopted by the General Assembly of the United Nations in 1948, as “the equal and inalienable rights of all members of the human family”.
 Comprising the UDHR (adopted in 1948), the International Covenant on Civil and Political Rights (adopted in 1966 and entered into force in 1976) and the International Covenant on Economic, Social and Cultural Rights (adopted in 1966 and entered into force in 1976) .
 Article 29(2).
 Article 16(1).
 Article 16(3).
 HRC resolution A/HRC/RES/13/27.
 57 member States had signed the statement in 2008, but by 2011 three switched to supporting the resolution in favour of LGBT rights.
 Rule 50(3).
 The Olympic Charter.
 Rule 2(10) ibid.
 See paragraph 2, Introduction to Report of the United Nations High Commissioner for Human Rights on ‘Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity’, supra.
 University of Minnesota Human Rights Library, http://www1.umn.edu/humanrts/undocs/html/vws488.htm (retrieved on 14th August, 2013).
 A treaty adopted by the UN General Assembly, which forms part of the International Bill of Human Rights.
 “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
 Articles 5, 10 and 11 of the Universal Declaration of Human Rights.