NEWSROOM April 10, 2019

APCOM’S LGBTI HUMAN RIGHTS AMBASSADOR JUSTICE MICHAEL KIRBY DIALOGUE WITH HIS EMINENCE PIETRO CARDINAL PAROLIN AT THE VATICAN

I begin by thanking his Holiness Pope Francis, the Holy See and the Cardinal Secretary of State for making this dialogue possible.  To be here today, I have crossed three continents.  After this dialogue I will return immediately to my home in Australia. The journey has afforded me much time to sharpen my thoughts.

Like Baroness Helena Kennedy QC, I am a lawyer.  I endorse what she has said about the capacity of the law to uphold justice and to change the minds of people as to what justice means.  However, having held judicial office for so long, thirty-four years, I am well aware law can sometimes be unjust.   Lawyers, as servants of the law, should be alert to injustice.  They have a professional and moral responsibility to do what they can to ensure that their profession never becomes an instrument for inflicting injustice. That realisation has launched this initiative of the International Bar Association (IBA).  In it, the largest international organisation of lawyers is here today supported by members of Parliament, of Executive Government, of the judiciary, of academia and civil society.  Also present are Dr Mark Ellis, Executive Director of the IBA and members of the IBA governing bodies.  

As I walked through the throngs of people, many of them children, in St Peter’s Square this morning, my mind went back to the day in 1962 when I was one of them during the pontificate of Pope John XXIII.  Like Pope Francis, he was a great reforming Pope and I was glad to be blessed by him. Unlike my colleagues, I was not raised in the Catholic tradition of Christianity but as an Anglican.  However, there are very many commonalities, and advances can be seen that reflect a new openness to dialogue about issues upon which Pope Francis gives leadership for all.

Growing up in Australia, a long while ago, around the age of 10 or 11, I came to know of a distinctive feature of my nature.  I discovered that my sexual orientation was homosexual.  Today I have been accorded the privilege to speak at this dialogue for LGBT people everywhere, including surely some of the children and some of the other pilgrims in St Peter’s Square.  Including also those in many lands who are oppressed by punitive criminal laws.  In my childhood and youth I quickly learned that I was expected to remain silent, even deceptive, about my sexual orientation and feelings.  I could not speak about them to my parents, to my siblings, to my grandmother, to my colleagues.  I was expected to pretend to be different from what I knew to be the truth. That is a very wrong thing to impose on a young person.

When I attended law school, I found that this deception was supported by criminal laws that were targeted at me specifically.  This was so, although I had not chosen to be homosexual and I could not change that reality.  It was just a fact of my nature. For decades, like millions, I paid the coinage of this deception, extracted to avoid the shame and the hostility and violence that society and its laws imposed upon me.  However, fortunately, my life coincided with advances in scientific knowledge.  In the unlikely location of Bloomington, Indiana in the United States in the 1930s, Alfred Kinsey began to research and record the reality about sexual minorities. They reflected variations in human nature.  From the work of scientists I derived courage.  When I cast away silence, my family and partner gave me support.  But it was not so in every family or in every land. Criminal law reinforces the shame and stigma.  Where criminal laws remain, they render change difficult or impossible.  They exact punishment, often severe and cruel. 

At university in Australia I learned that criminal laws were not universal on this topic.  In France, such crimes had been repealed in 1793 during the French Revolution.  The consequent Penal Codeeventually brought enlightenment so far as law was concerned, to most countries of the world. However, in every country of the former British Empire, now the Commonwealth of Nations, hostile criminal laws remained in place.  Likewise this was so in Islamic and other countries.  Even today such laws remain a serious impediment to the achievement of worldwide enlightenment based on truth.  

That is what has brought us to the Holy See for this dialogue.  There are many issues to be discussed concerning the needs for global law reform to address the challenges of violence and discrimination against LGBT people.  We cannot tackle all of these today.  Yet we must address the challenge to the laws that criminalise adult consensual sexual conduct.  Such laws should be repealed.  Until this happens, it is impossible to address other issues of injustice.  A great door of the law, like a door in the Vatican past, remains slammed shut in the face of justice.  Some established statements of the Holy See appear to suggest that criminal laws of this kind are unnecessary.  We hope that, as a result of this dialogue, that position will be clarified and strengthened and stated directly by the Pope.  And that is the limited and specific objective that has brought us to Rome today.

Over several decades I have participated in investigations and  inquiries that have urged the repeal of criminal laws against LGBT people (and others): the Eminent Persons Group of the Commonwealth of Nations (2012);[1]the United Nations Development Programme’s Global Commission on AIDS (2012);[2]the UNAIDS/Lancet Commission on Defeating AIDS – Advancing Global Health (2015);[3]and countless recommendations of the UNAIDS Reference Group on Human Rights and other bodies, including that of the IBA itself. In Africa, the Caribbean and elsewhere I have urged action in accordance with these reports.  But leaders have replied that they know action is necessary to reduce violence and to diminish the suffering of HIV, but they do not dare to recommend reforming the criminal legislation for fear of religious condemnation. Occasionally constitutional courts provide relief.  They strike down such laws by reference to national or regional constitutional values. A clear statement from the Holy See would expedite the process of law reform.  It would help to overcome the log-jam of inertia and timidity of those with the power to effect change.

In coming to this dialogue we draw inspiration from the words of Pope Francis, since the earliest days of his pontificate: “Who am I to judge?” he famously asked on 29 July 2013.  “If someone is gay and he searches for the Lord and has good will, who am I to judge?”  And in an article in 2018 about a young Chilean complainant he reportedly declared: “You have to be happy with who you are.  God made you this way and loves you this way, and the Pope loves you this way.”[4]  In today’s world, these statements would not be remarkable except for what has gone before.

The initiatives of Pope Francis have opened the prospect of dialogue that earlier appeared remote.  That is the importance of this day and this opportunity.

The protection of the Universal Declaration of Human Rights[5]is a reason why the global community is increasingly calling for an end for the laws that criminalise LGBT conduct.  They are contrary to universal human rights. The new voice of Pope Francis encourages the overdue dialogue that the IBA seeks to undertake with the Holy See. There have been too many tears and too much cruelty and unkindness in the years gone by.  I can vouch for that.  Insistence on human dignity is the antithesis of violence and discrimination.  The well springs of human kindness and the deep knowledge of the human condition evidenced in His Holiness’s statements and actions are a sure foundations for the dialogue that is sorely needed in our world. This has brought us to this encounter in this special place.

***

At the conclusion of the dialogue and following presentations by Baroness Kennedy QC (Director, IBA HRI) and Dr Leonardo Raznovich (IBA LGBT Forum) and in the presence of the other participants in the dialogue, Cardinal Parolin expressed the view that there was “much common ground” between the matters advanced by the IBA HRI delegates and the position of the Holy See; that such common ground included the need to uphold the essential dignity of each and every human being; and therefore to avoid violence and discrimination.  He agreed to convey the request for continued dialogue to Pope Francis.  The IBA stands ready to advance that dialogue.  


[1]  Commonwealth Heads of Government, Report of the Eminent Persons Group, A Commonwealth of the People, a Time for Urgent Reform(October 2011, Recommendation 60), 102. 

[2]United Nations Development Programme, Global Commission on HIV and the Law, Risks, Rights & Health(July 2012) (Chapter 3.3), 44.

[3]Published The Lancet(June 2015) “Defeating AIDS – Advancing Global Health”, 12. 

[4]https://www.nytimes.com/2018/05/21/world/europe/pope-francis-gays-god-made-you-this-way-.html.  See also https://www.newwaysministry.org/resources/pope-francis-lgbt-issues.

[5]Resolution 217A (iii) 10 December 1948.  Article 1 declares “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”