Terrence Lockyer

Sepp Blatter, Qatar, and the criminalization of sexual behaviour

In General on December 17, 2010 at 2:53 pm

There are many sound reasons to doubt the wisdom, and motives, of FIFA’s award of hosting rights for the 2022 senior men’s football World Cup finals tournament to Qatar:  it is a tiny country with a population roughly equal to that of a large city (approximately 1.5 million according to a 2008 estimate), with little international pedigree in the sport (as witness the record of its world rankings), which has never qualified for the tournament, in a part of the world where temperatures during the traditional period of the tournament are by common consent vastly inappropriate for the sport, and relying on very ambitious technical solutions to mitigate this latter difficulty.

Not among these reasons, as I see it, is the fact that homosexual behaviour is illegal in Qatar or that Qatar voted to remove from a United Nations resolution against arbitrary execution specific reference to sexual orientation (as also did the Russian Federation, which is to host the 2018 tournament, along with only Azerbaijan and Kazakhstan among countries falling in the European region for football purposes), or indeed that FIFA president Sepp Blatter has made misconceived and infantile comments on the former fact, for which he has now issued a fairly typical politician’s apology.

On the specific point of the UN vote, another country to back removal of specific reference to sexual orientation was the most recent FIFA World Cup host, South Africa, despite its having the greatest legal protection for sexual minorities on the African continent, and more extensive provision for their rights than do many countries in the developed world, and almost all opponents of the removal of the reference.  These provisions include specification of sexual orientation as a prohibited ground of discrimination by both the state and individuals in the Bill of Rights (Constitution of the Republic of South Africa, Act No. 108 of 1996, Chapter 2, section 9.3-5), sexual offences legislation that embodies full equality regardless of sex or sexual orientation (the Criminal Law [Sexual Offences and Related Matters] Amendment Act, No. 32 of 2007), full and equal recognition of same-sex and different-sex marriages and civil partnerships (the Civil Union Act, No. 17 of 2006), and full and equal recognition for same-sex couples as prospective adoptive parents (in terms of the judgment of the Constitutional Court in the matter of Du Toit and Another v Minister of Welfare and Population Development and Others, CCT40/01 [2002] ZACC 20; 2002 [10] BCLR 1006 ; 2003 [2] SA 198 [CC], decided the 10th September 2002).  The recent UN vote by South Africa is certainly shameful and worrying as to its implications for the commitment of that government to obeying its own legal obligations;  however, it has received very little international press attention, and has not widely been held to cast a pall over the recent World Cup or South Africa’s credentials as a potential host of future sporting or other international events.

And, in fact, Mr Blatter, however ill-advised, hurtful, and trivializing his comments in their specific form, was doing at base no more than admitting reality.  Objectors have, among other things, used the line that what two people do in the privacy of their bedroom should be no concern of FIFA’s or of the state’s, and with that broad principle I have no quarrel;  however, in almost every country, the state does indeed consider itself to have an interest in, and does indeed regulate, what two people do in the privacy of their bedroom, depending on, among other things, their ages, status (possession of a psychological impairment, how if at all they are related, marital status), sex, specific choice of activity (whether sexual act or sexual practice, such as some forms of BDSM), whether any commercial consideration has passed between them, whether any non-human party is concerned, and who does or might witness what they do.  The only differences from jurisdiction to jurisdiction are in (1) the number of criteria, their relative weight, and the kinds of activity that are held to warrant the intervention of the state, and (2) the potential penalties for infringement.  On the former point, Qatari legislation circa 2010 just happens to be at about the stage at which most of the Anglophone world found itself half a century ago.  When the World Cup was held in England in 1966, a contemporary gay male couple would have been well advised to be similarly cautious, as the Wolfenden proposals of 1957 (contained in the Home Office and Scottish Home Department Report of the Committee on Homosexual Offences and Prostitution) had been allowed to languish for a decade and male homosexual behaviour in private and where both parties were over the age of twenty-one was not decriminalized in England and Wales until a year later, and then only via a Private Member’s Bill that passed in the House of Commons on the 4th July 1967 by 99 to 14 (where retaining the quorum of 100 members in the House was a challenge throughout the proceedings), before passing through the Lords, and attaining Royal Assent on the 27th July (though there remained no corresponding reform in Scotland until 1980, or Northern Ireland until 1982).  All of this occurred less than two months after the US Supreme Court had ruled unanimously against the constitutionality of state laws barring marriage between those classed as “white” and others.  When the World Cup was held in the USA in 1994, a contemporary gay couple of any age could have been arrested in any one of several states for having consensual sex with each other in private, and it was not until the Supreme Court ruling in Lawrence v. Texas (539 U. S. 588 [2003], delivered the 26th June 2003) that all US state laws of the sort were effectively abolished.

Which is to say, while I am decidedly with those who favour the decriminalization of consensual same-sex (or, for that matter, different-sex) sexual behaviour, and the enaction of provisions outlawing discrimination on the basis of sexual orientation, wherever those are not already the case, it seems to me both pointless and a little hypocritical to attack the awarding of a football tournament to Qatar on this basis, especially considering the recent, uneven, and fitful progress of these basic rights and liberties even in those societies that have long considered themselves the bastions of individual liberty.  All such progress has been, and is likely to continue to be, slow and uneven, with disappointments and setbacks and opportunities not taken, and perhaps the best that can be done internationally is to keep raising awareness of the issue, especially when attention turns to a country that retains repressive legislation.

Mr Blatter himself, as a privileged citizen of a modern European country with an international career, is perhaps more culpable, and his stated views do indeed raise serious questions about the extent of, and his personal commitment to, the narrative of the inclusiveness of football, and of FIFA as its international governing body, with which he evidently is very keen to be associated.  Football has a very poor record and reputation when it comes to nationalism, racism, thuggery, and other divisive and dangerous behaviour, and campaigns against these have had only partial success.  Football, even in countries with good general records, has very little record at all of even attempting to coordinate campaigns against homophobia and to make fans and participants who happen to belong to sexual minorities feel welcome and safe.  This is shameful, and if the recent incident has any effect in making either Mr Blatter himself or football authorities more generally aware that they cannot ignore the rights and the wellbeing of sexual minorities among their respective constituencies, that will be a good thing.

 

Update (2010-12-23 at 01h45 GMT):  One is pleased to observe that South Africa has finally acknowledged its Constitutional obligations and (along with a number of other countries that switched from less to more positive positions) changed its vote on the UN resolution referred to above, supporting a new amendment to restore language specifying “sexual orientation”, which has passed both an initial vote on the amendment and a full vote on the resolution.

 

Bibliography

Civil Union Act, No. 17, 2006, of the Republic of South Africa, accessible in PDF from http://www.polity.org.za/article/civil-union-act-no-17-of-2006-2006-01-01

Constitution of the Republic of South Africa, 1996, Chapter 2, section 9.3-5, accessible online at http://www.constitutionalcourt.org.za/site/theconstitution/thetext.htm or (for the text specifically of Chapter 2, headed “Bill of Rights”) http://www.constitutionalcourt.org.za/site/constitution/english-web/ch2.html

Criminal Law (Sexual Offences and Related Matters) Amendment Act, No. 32, 2007, of the Republic of South Africa, accessible in PDF from http://www.polity.org.za/article/criminal-law-sexual-offences-and-related-matters-amendment-act-no-32-of-2007-2008-01-24

“Du Toit and Another v Minister of Welfare and Population Development and Others (CCT40/01) [2002] ZACC 20; 2002 (10) BCLR 1006 ; 2003 (2) SA 198 (CC) (10 September 2002)”, judgment of the Constitutional Court of the Republic of South Africa, accessible in PDF or RTF from the SAFLII database of legal decisions at http://www.saflii.org.za/za/cases/ZACC/2002/20.html or via a keyword search in the year 2002 on the Court’s own site at http://www.constitutionalcourt.org.za/site/home.htm

Home Office, Scottish Home Department.  Report of the Committee on Homosexual Offences and Prostitution.  Presented to Parliament by the Secretary of State for the Home Department and the Secretary of State for Scotland by Command of Her Majesty, September 1957 (Cmnd. 247) (London : Her Majesty’s Stationery Office 1957)

“Lawrence et al. v. Texas”, 539 U. S. 558 (2003), in United States Reports, Volume 539:  Cases Adjudged in the Supreme Court at October Term, 2002, June 2 through October 2, 2003, together With Opinion of Individual Justice in Chambers (Washington : U. S. Government Printing Office 2005), pp. 558-606, and accessible in PDF via http://www.supremecourt.gov/opinions/boundvolumes.aspx

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