Discrimination against gays and lesbians continued in countries throughout the world in 1998, often resulting in the arrest and imprisonment of homosexuals on charges relating directly or indirectly to their sexual orientation. In several cases, charges of sodomy were employed to discredit a political figure or organization. It is irrelevant whether such charges are real or fabricated: to persecute or discriminate on the basis of sexual orientation is a violation of human rights.

In a positive development, the 1996 South African constitution specifically outlawed discrimination on the grounds of sexual orientation, the only constitution in the world to do so, according to South African jurists. On October 8, 1998, the Constitutional Court confirmed a May High Court ruling that criminalization of sodomy was unconstitutional and ordered the removal of such provisions from the statute books. Although discrimination against gays and lesbians continued in practice, and many discriminatory laws remained, activists in South Africa successfully challenged discriminatory laws in the courts. The Department of Home Affairs continued to deny rights of residence to foreign same-sex partners of South African couples, but this was challenged in court, and the government was reported to be planning legislation to legalize same-sex marriages, which would give gay couples the same legal rights as heterosexual ones, including equal rights under immigration law.

International human rights bodies have also declared discrimination and violence based on sexual orientation or identity to violate human rights. The European Court on Human Rights has repeatedly cited the right to privacy in condemning laws criminalizing same-sex acts between consenting adults. The U.N. Human Rights Committee considers sexual orientation to be protected from discrimination under international law.

According to the International Gay and Lesbian Human Rights Commission (IGLHRC), in 1998 more than eighty-five countries maintained laws that criminalize sexual activity between consenting adults of the same sex. In some countries the statutes regulated specific sexual acts regardless of the gender of the people involved, whereas other countries maintained laws that prohibit a wide range of same-sex practices. Many laws are broad in scope, dealing with “unnatural acts,” “immoral acts,” or acts causing “public scandal.” In some countries general laws against “loitering” or “hooliganism” are used to arrest or persecute homosexuals. In some countries, laws discriminating against homosexuals are not enforced: some of the former Soviet republics, for example, which had provisions in their penal codes outlawing homosexual activity, removed these provisions without debate when the penal codes were revised.

In Romania, the only country in Western Europe that actively punishes homosexuality, Article 200 of the penal code, though hotly debated, remained on the books: paragraphs 1 and 5 of the article each provide for punishment of one to five years of imprisonment: under paragraph 1, for behavior that causes “public scandal”; under paragraph 5, for any action that might be construed as encouraging or inciting homosexual behavior.

In 1998 Human Rights Watch worked to improve the situation of gays and lesbians in Romania. A report on sexual orientation and criminal law in Romania, published jointly by Human Right Watch and IGLHRC, was released in January at a press conference in Bucharest by representatives of both organizations. The representatives met with many nongovernmental organizations and with government officials, including President Constantinescu, who promised to release “three or four” homosexuals currently serving time for nonviolent activities. In May Mariana Cetiner, a lesbian who was sentenced to three years in prison for propositioning another woman, was released, but no further releases were confirmed. The president also expressed his opposition to Article 200 of the penal code, but his attitude, and pressure from the Council of Europe, of which Romania is now a member, were not enough to convince the Romanian parliament to repeal Article 200. Indeed, in June 1998, almost immediately after the Council of Europe voted to stop monitoring human rights abuses in Romania, the Romanian parliament voted against any amendments to Article 200.

Gays and lesbians can be legally dismissed from their jobs because of their sexual orientation in forty states of the United States. The Employment Non-Discrimination Act, a bill that would protect workers in every state from discrimination based on sexual orientation, had not been acted on by the U.S. Congress at the time of this writing. In May 1998, however, President Clinton signed an executive order uniformly protecting federal workers from discrimination based on sexual orientation, and the House of Representatives voted to uphold the order in August. The Clinton administration also called for an expansion of the definition of hate crimes in the federal hate-crime statute to include violence based on sexual orientation. Forty states in the U.S. have passed hate-crime laws, but only eleven specifically cover anti-gay hate crimes. Wyoming is one of ten states that do not have hate-crime laws. In October, twenty-one-year-old Matthew Shepard, an openly gay freshman at the University of Wyoming, was tortured and murdered by two men who picked him up in a bar; despite the extreme brutality of the crime, police initially claimed the motive was robbery.

Gays and lesbians serving in the U.S. military continued to face discrimination under the “don’t ask, don’t tell” policy whichwas violated hundreds of times in 1998 by military personnel who continued to question servicemembers and then to discharge them for their sexual orientation. According to the New York Times , a Defense Department draft report revealed that the number of homosexuals being forced out of the military was 67 percent higher than when the policy was adopted in 1993. The Times claimed that the Defense Department “was resistant to examining the ... obvious possibility, which is that base and unit commanders are subverting a policy that was intended to stop witch hunts....”

Gay educators in the United States faced discrimination and job dismissals if school officials, parents, or students learned that a teacher was gay. In Salt Lake City, Utah, a high-school student asked a teacher whether she was a lesbian, and the teacher answered affirmatively. She was instructed not to speak about her personal life in school or elsewhere and was dismissed from her volleyball coaching job. She filed a federal lawsuit alleging an infringement upon her free speech rights, and the suit was still pending at the time of this writing. In San Leandro, California, a heterosexual high-school teacher spoke out in favor of the students’ gay-straight alliance group. In response to his support for the group, parents tried to have him dismissed, and an official reprimand was placed in his file. The teacher explained that his main goal in supporting the group was to create a safe environment for gay and lesbian students who suffered from harassment in school.

Gay male inmates in U.S. prisons gave testimonies to Human Rights Watch indicating that they were frequently targeted for rape by other prisoners and that prison officials were indifferent to such abuse or in some instances actually encouraged it. Gay male prisoners reported verbal harassment by openly homophobic guards.

Gay and transsexual prisoners in Brazil faced particularly degrading and discriminatory treatment in the hierarchical society of the men’s prisons, according to a Human Rights Watch report. Many were confined in Sao Paulo’s Casa de Detencao, most of them in a group of cells in Pavilion Five. A despised minority, they were forced by other inmates to remain in their cells on visiting days and to do “women’s work” for the other prisoners, such as washing their clothes and serving as “sex slaves.” Prison officials did nothing to intervene.

Police violence against and detention of gay and lesbians in Argentina continued in 1998, and Human Rights Watch representatives met with Argentinian government officials in October to discuss such abuses. According to a Human Rights Watch report, released in Buenos Aires in October, homosexuals were subjected to frequent arbitrary detentions, followed by police abuses that included extortion, verbal and physical violence, torture, inhuman and degrading detention conditions, robbery, compulsory HIV testing, sexual harassment and rape, false criminal accusations and death threats. Police in Argentina conducted razzias (raids) against members of homosexual communities, raiding bars, discos, and other meetings places and often detaining large groups at a time. Individuals were searched and detained for no apparent reason, according to the discretion of the police conducting the raid. Some transgender women in Mendoza, Argentina, were arrested and assaulted by police in 1998 and kept in basement cells with inadequate ventilation where they were sexually assaulted and denied access to medical treatment.

In Malaysia, the arrest in September of the former deputy prime minister, Anwar Ibrahim, caused an international outcry, especially when evidence and testimony indicated that he had been beaten by police, denied sleep, and subjected to threats and psychological abuse. Authorities planned to try Mr. Anwar for sodomy, which is illegal under Malaysian law. Although sodomy is a bailable offense, at the time of this writing he was being detained under the Internal Security Act which allows a person to be held indefinitely without charges or trial. Human Rights Watch called for an independent investigation into the treatment of Mr. Anwar, and, among other things, protested that laws criminalizing consensual private sexual acts between adults are a flagrant violation of human rights protections. Observers believed that Mr. Anwar was being punished for his increasingly critical comments about official corruption, cronyism, and Prime Minister Mahathir’s management of the national economy. Human Rights Watch planned to send observers to his trial.

In Tunisia, similar tactics were used against the pre-eminent independent women’s organization, the Tunisian Association of Democratic Women (ATFD). The organization was attacked in the government-influenced al-Hadath on March 11 in an article hinting that it was a vehicle for promoting lesbian sex.

President Robert Mugabe of Zimbabwe had been especially outspoken in recent years in vilifying homosexuals and blaming them for his country’s ills. According to Mugabe, “Homosexuals have no rights whatsoever.” He was quoted as having said, “If pigs and dogs don’t do it, why must human beings?” At this writing, Mugabe was trying to block a local gay organization from joining a human rights session at the World Council of Churches meeting scheduled for December 1998 in Harare.

Keith Goddard, a Zimbabwean gay activist, was arraigned in June 1998 on sodomy charges after he complained to police about an attempt to blackmail him. At this writing, he was free, pending trial. Activists believed his arrest was part of Mugabe’s campaign against the organization, Gays and Lesbians of Zimbabwe (GALZ), of which Goddard was the programs manager. As of this writing, judgment was indefinitely postponed by the judge in the trial of Zimbabwe’s former president, Canaan Banana, on eleven charges of sodomy, attempted sodomy, and illegal assault. Banana, who was president from 1980 to 1987, had pleaded not guilty to all charges.

In neighboring Zambia, the Zambia Independent Monitoring Team (ZIMT), a nongovernmental human rights organization, began campaigning for gay and lesbian rights and gave its support to a new gay and lesbian association, despite hostile press coverage and threats from the government. The new group, which calls itself the Lesbians, Gays and Transgender Persons Association, appliedfor registration, which provoked Zambia’s Vice-President Christon Tembo to declare that “anyone who promotes homosexual practices after today will be arrested.” In October, President Frederick Chiluba denounced ZIMT for supporting homosexuality, which he called “unbiblical” and “against human nature.” Former president Kenneth Kaunda, however, suggested that homosexuality was “here to stay” and that “we need time to examine it carefully.”

Relevant Human Rights Watch report:
Romania -- Public Scandals: Sexual Orientation & Criminal Law, 1/98